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Environmental Blog

  • 21
  • June
  • 2018

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Environmental Appeals Board Weighs Challenge to Power Plant’s PSD Permit for EPA’s Dismissal of Battery Storage as BACT for Peak Demand Periods

On May 29, 2018, nongovernmental organizations (“NGOs”), including the Sierra Club, petitioned the U.S. Environmental Protection Agency (“EPA”) Environmental Appeals Board, challenging the federal Clean Air Act Prevention of Significant Deterioration permit issued by EPA Region 9 for the Palmdale Energy Project in California.

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  • 13
  • March
  • 2018

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Consent Decree Dispute Highlights Changes in SEP, Mitigation Projects Due to New DOJ Settlement Policy

Controversy surrounding a Clean Air Act consent decree has served to highlight changes in environmental enforcement brought about by a June 5, 2017 memorandum from the United States Attorney General announcing a general prohibition on settlement payment to third parties. Memorandum for All Component Heads and United States Attorneys, Prohibition on Settlement Payments to Third Parties, (Office of the Attorney General, June 5, 2017) (“June 5 Memorandum”). Attorneys in the environmental community immediately recognized that this prohibition would have implications for environmental settlements that included Supplemental Environmental Projects (“SEPs”) (projects undertaken in settlements by defendants, that are not required for compliance, that result in a reduction in penalties, see Issuance of the 2015 Update to the 1998 U.S. Environmental Protection Agency Supplemental Environmental Projects Policy (U.S. EPA March 10, 2015) (“SEP Policy”), as well as mitigation projects (projects undertaken by defendants as part of the overall injunctive relief to mitigate alleged harms due to past violations and which do not generally result in a penalty reduction), see Securing Mitigation as Injunctive Relief in Certain Civil Enforcement Settlements (2nd edition) (U.S. EPA Nov. 14, 2012) (“Mitigation Policy”). After the Attorney General Policy was announced, the Environmental and Natural Resources Division (“ENRD”) of the Department of Justice issued guidance on the application of the June 5 Memorandum to cases handled by ENRD. Settlement Payments to Third Parties in ENRD Cases, (Office of the Acting Assistant Attorney General, ENRD, January 9, 2018) (“ENRD Policy”). This policy sets forth a limited exception to third-party payments when the payments directly remedy harm to the environment.

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