Month: July 2015

Jones Day
Charles T. Wehland, Jennifer M. Hayes and Meghan E. Sweeney

July 7, 2015

On June 29, 2015, the U.S. Supreme Court issued its opinion in Michigan v. EPA, which may have serious implications for the Environmental Protection Agency’s (“EPA”) ability to regulate hazardous air pollutant emissions from power facilities going forward. 576 U.S. ___ (June 29, 2015). In a 5–4 decision, the Court invalidated EPA regulations setting limits on mercury, arsenic, and acid gas emissions from coal-fired power plants (the “MATS Rule” or “Rule”) by determining that EPA should have considered the compliance costs imposed on utilities at the first stage of the Agency’s regulatory analysis. The Court’s opinion is a solid endorsement of the need for agencies to engage in a cost–benefit analysis in deciding whether to regulate. The opinion is also another example of the Court’s gradual shift away from paying broad deference to EPA decisions.

The Clean Air Act authorizes EPA to regulate emissions of hazardous air pollutants from certain stationary sources, such as power plants, refineries, and factories under 42 U.S.C. § 7412. EPA may regulate fossil-fuel-fired power plants only if the Agency first “perform[s] a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements” imposed by law. 42 U.S.C. § 7412(n)(1)(A). If EPA “finds … regulation is appropriate and necessary after considering the results of the study,” it “shall regulate [power plants] under” § 7412. Id.

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Foley Hoag, LLP
Seth D. Jaffe

July 14, 2015

The connection between energy use and emissions of air pollutants, including GHGs, is uncontroversial.  It is also widely, if not universally, accepted that there is a lot of low-hanging fruit in energy efficiency.  I agree completely with both propositions.

Nonetheless, a recent article in Energy Research & Social Science (fee required for full article), reported in Tuesday’s Washington Post, provides a useful — and somewhat humorous — note of caution.  The article concerns how people use thermostats.  We’re not even talking smart grid stuff here; just programmable thermostats.

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Hunton & Williams LLP
Walter J. Andrews & Michael Levine

July 6, 2015

The Supreme Court of Texas has ruled that CERCLA enforcement proceedings brought by the EPA are a “suit” as that term is used in commercial general liability insurance policies. In doing so, Texas joins the majority of other jurisdictions to consider the issue. McGinnes Industrial Maintenance Corp. v. The Phoenix Insurance Co., No. 14-0465 (Tex. June 26, 2015).

Background

The facts in McGinnes are unremarkable. In the 1960s, McGinnes allegedly disposed of industrial waste containing, among other things, dioxin. The EPA began investigating the disposal site in 2005, and by 2008 had issued to McGinnes a demand letter that included some 58 requests for information about McGinnes’ activities at the site. Failure to comply would subject McGinnes to up to $32,500 per day in fines and penalties. In 2009, the EPA informed McGinnes that it was responsible for cleaning up the site and demanded that McGinnes pay $378,863.61 in remediation costs. The letter required McGinnes to make a good-faith offer to settle with the EPA within 60 days. When McGinnes did not make an offer, the EPA issued a unilateral administrative order directing McGinnes to conduct a “remedial investigation and feasibility study” in accordance with the EPA’s specifications. The letter warned McGinnes that its willful failure to comply without cause would subject it to $37,500 per day in civil penalties and punitive damages up to three times the resulting costs to the EPA.

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Published in the Reading Eagle

July 8, 2015

The 48 people chosen to serve on the Pennsylvania Pipeline Infrastructure Taskforce appointed by Gov. Tom Wolf were announced Tuesday.

Also released were the names of the more than 100 people who will serve on the dozen work groups that will work with the task force.

Robert May with Synergy Environmental of Spring Township and Alisa Harris with UGI Energy Services, also of Spring, were named to work groups. May is on the emergency preparedness group, while Harris is on the public participation group.

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