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  • 06
  • December
  • 2016

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85-Year Climate Forecasts Prompt Species Listing Under the Endangered Species Act

In late October, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (NOAA Fisheries) decision to list the Beringia distinct population segment (DPS) of the Bearded Seal as threatened under the Endangered Species Act (ESA).1 This listing decision was controversial because the Beringia DPS is not facing any imminent or serious threat or reduction to its population. Indeed, NOAA Fisheries acknowledged that the Beringia DPS currently has a large, widely distributed, and genetically diverse population. Nevertheless, NOAA Fisheries concluded that the Beringia DPS was threatened, based primarily on climate change models that predict the loss of sea ice by the year 2095 in ways that would likely affect the seal’s significant life functions and endanger the seal. This is the first time NOAA Fisheries has looked so far into the future to form a basis to list a species as threatened that is currently faring well.

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  • 31
  • October
  • 2016

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Environmental Groups Perpetuate a "Climate Alarmism Enterprise," RICO Suit Claims

On September 12, 2016, Leonid Goldstein filed a civil lawsuit in the Northern District of Texas alleging a massive criminal scheme by numerous environmental non-governmental organizations (“NGOs”) and unnamed individuals to perpetuate the “false claim” of “dangerous ‘global warming’” through a criminal scheme that the complaint describes as a “Climate Alarmism Enterprise.” In what is perhaps a first in the climate change legal battles, Goldstein alleges that in advocating for a solution to climate change, these environmental groups violated the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, a federal statute aimed at combatting organized crime.

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  • 21
  • September
  • 2016

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North Dakota Reveals Basic Framework for Challenge of EPA's Quad Oa Methane Regulations for the Oil and Gas Sector

As discussed in this previous post, a number of states and industry groups have taken a stand against the Environmental Protection Agency’s new methane and VOC emissions regulations for the oil and gas sector (“Quad Oa”). North Dakota recently provided additional insight about the claims that it plans to bring against EPA in the U.S. Court of Appeals for the D.C. Circuit.

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Texas Challenges EPA’s Failure to Make New Endangerment Findings for the Quad Oa Methane Rules for the Oil and Gas Sector

As discussed in this previous post, a number of states and industry groups have challenged EPA’s new VOC and methane emission regulations for the oil and gas sector (“Quad Oa”). Texas has now further defined the claims it plans to bring against EPA in the U.S. Court of Appeals for the D.C. Circuit.

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Ninth Circuit lends biomass a Helping Hand

On September 2, 2015, the Court of Appeals for the Ninth Circuit handed down its opinion in a consolidated case - Helping Hand Tools v. U.S. Environmental Protection Agency (available here). In it, the court held that EPA did not act arbitrarily or capriciously in granting a Prevention of Significant Deterioration (“PSD”) permit under the Clean Air Act to Sierra Pacific Industries, Inc. Both Helping Hand Tools and the Center for Biological Diversity had petitioned the court to review the permit and the court consolidated their petitions. The decision is clearly a win for EPA and Sierra Pacific. Since EPA’s exemption for biomass PSD permitting expired in 2014, biomass facilities have been subject to PSD permitting for greenhouse gases, but the manner in which they would be treated has remained an open question. The Ninth Circuit’s opinion applies established precedent regarding the PSD permitting program to a biomass facility, establishing that biomass facilities cannot be compelled to consider other forms of generation in the best available control technology analysis. The opinion is also noteworthy because the court granted deference to EPA’s Bioenergy BACT Guidance.

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  • 18
  • August
  • 2016

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Additional Legal Challenges to EPA’s New Methane Emissions Regulations

Legal challenges to EPA’s recently finalized methane and VOC emissions regulations for the oil and gas sector (“Quad Oa”) continue to gain traction as additional states and affected industry groups file suit. On August 2, 2016, a coalition of 14 states and a collection of oil and gas industry groups each filed petitions asking the U.S. Court of Appeals for the D.C. Circuit to review the new standards. The American Petroleum Institute (“API”) and the Western Energy Alliance have also filed individual challenges to the rules. North Dakota and Texas filed similar petitions for review in July.

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CEQ Issues Final Guidance on How Federal Agencies Should Assess Climate Change Under NEPA: What Has Changed?

On August 2, 2016, the Council on Environmental Quality (“CEQ”) released guidance on the assessment of climate change impacts under the National Environmental Policy Act (“NEPA”) (“the Guidance”). The Guidance is the culmination of a long process: the Obama Administration first proposed draft NEPA climate change guidance in 2010, and published subsequent draft guidance in 2014, before taking action to issue the final Guidance. While this Guidance does not purport to create any new obligations for federal agencies under NEPA, it nonetheless has the potential to significantly expand the scope of climate impacts considered in prior NEPA documents for “major federal actions.” This is the first in a series of posts discussing the new Guidance.

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  • 03
  • August
  • 2016

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Up in the Air: EPA Issues Aircraft GHG Endangerment Finding

On July 25, the U.S. Environmental Protection Agency (EPA) issued its endangerment and cause or contribute finding that six greenhouses gases (GHGs) (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride) in the atmosphere endanger the public health and welfare and that GHG emissions from aircraft contribute to this air pollution. EPA first proposed the endangerment finding back in July 2015.

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  • 27
  • July
  • 2016

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EPA Finalizes Rule on Methane for New and Existing Landfills That Could Have Broader Implications for Climate Regulations Under the Clean Air Act

As part of the Obama Administration’s Climate Action Plan and methane strategy, the U.S. Environmental Protection Agency finalized a package of rules on July 14, 2016, to reduce methane emissions at new and existing landfills. In a public statement, EPA noted that municipal solid waste landfills are the second-largest industrial source of methane emissions in the United States. EPA is regulating methane because it is considered a potent greenhouse gas (“GHG”). The rules, therefore, aim to cut methane (and other gases) from landfills by lowering the emissions threshold at which landfills must install pollution controls by roughly a third.

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  • 19
  • July
  • 2016

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U.S., Canada, and Mexico Agree to Use Similar Measures for the Social Cost of Carbon to Value GHG Reductions

On June 29, 2016, President Barack Obama, Canadian Prime Minister Justin Trudeau, and Mexican President Enrique Peña Nieto made a trilateral energy and climate announcement during the North American Leadership Summit in Ottawa. The announcement included an Action Plan of “deliverables,” such as striving “to achieve a goal for North America of 50% clean power generation by 2025.”

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EPA Continues to Aggressively Target Greenhouse Gas Emissions from the Oil and Gas Sector

On May 12, 2016, the U.S. Environmental Protection Agency issued three final rules, all related to the regulation of air emissions from oil and gas operations. The most significant of these regulations was a set of new requirements to limit Volatile Organic Compound (VOC) and methane emissions from certain new, modified, and reconstructed upstream and midstream sources in oil and gas production.

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  • 06
  • July
  • 2016

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EPA Finalizes Oil and Gas Source Definition: The Evolution of EPA’s Source Determination Rule

On May 12, 2016, EPA issued the final version of its source determination rule, defining when activities will be considered “adjacent” for purposes of major source air permitting in the upstream oil and gas sector. Under the new rule, new or modified equipment or activities are “adjacent” if they are on the same surface site or on sites that share equipment and are within one-quarter mile of each other.

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  • 28
  • June
  • 2016

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EPA’s Cost Analysis for the New Methane Rules for the Oil and Gas Sector

On August 2, 2016, EPA’s first-ever rule to directly regulate methane emissions from the oil and gas sector will go into effect. EPA is regulating methane as a greenhouse gas (“GHG”), which it considers to be 25 times more potent than carbon dioxide (“CO2”). The way that EPA values the reduction in these emissions resulted in the agency concluding that the rule would have a net economic benefit.

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  • 13
  • June
  • 2016

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Preparing for the New Rules for Fugitive Emissions at Well Sites

On June 3, 2016 EPA published a final New Source Performance Standards (NSPS) for methane and VOC emissions from the oil and gas sector (known as “Quad Oa”). This is the second in a series of posts discussing the new requirements. This post outlines steps that upstream companies may want to consider now that Quad Oa is taking effect. More information about the requirements is available here.

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