Recently in Alaska Category

Regulating Emergency Generators: EPA Denies Rehearing of RICE Rule, Appeals Court is Next Stop

August 20, 2014

On August 15, the U.S. Environmental Protection Agency ("EPA") issued a notice denying petitions for rehearing of its new rules governing air emissions from stationary Reciprocating Internal Combustion Engines ("RICE"). RICE, especially diesel engines, are widely used for emergency backup generation for hospitals, factories, and other facilities requiring an uninterrupted supply of power. They are also an important source of power to stabilize the electric grid in certain types of emergencies. Developments concerning the RICE emissions rule are therefore of great concern to electric utilities and a multitude of end-use electric consumers who rely on diesel back-up generators.

The rehearing petitions stem from EPA's 2010 proposal to extend its regulation of hazardous air pollutants emitted by stationary RICE from the previous 500 horsepower limit down to engines as small as 100 HP. As we reported early last year, in response to concerns related to the mismatch between the proposed RICE rule and NERC reliability standards, EPA modified the proposed rules to allow generators that have not been retrofitted with expensive pollution control equipment to operate for up to 100 hours per year during declared electrical emergencies, and for such generators to operate for up to 50 hours per year to prevent voltage collapse or overloads in local transmission or distribution systems.

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May: A Tough Month for Climate Plaintiffs, But Odd Fifth Circuit Decision Leaves the Door Ajar

June 13, 2013

In May, the federal courts rejected two more major cases in which plaintiffs sought damages from large emitters of greenhouse gases based on claims of climate-caused property damage. As a result of the U.S. Supreme Court's action, one of the major theories espoused by plaintiffs -- federal common law nuisance -- now appears to be dead. The fate of other major theories, however, remains uncertain because a federal appeals court could not escape a procedural tangle and therefore failed to definitively address those theories.

In the first case, involving the Native Village of Kivalina, Alaska, the Supreme Court denied a petition for certiorari filed by the plaintiffs, whose claim was earlier rejected by the U.S. Court of Appeals for the Ninth Circuit. As reported here previously, the Kivalina plaintiffs claimed that release of greenhouse gases has caused a significant decline of Arctic sea ice. Without the protection of sea ice, wave and storm damage from the Arctic Sea eroded the land underlying the Village. Under the plaintiffs' theory, greenhouse gas emitters are responsible for this property damage because greenhouse gases have caused the sea ice decline. The Ninth Circuit rejected Kivalina's claims, based on the federal common law of nuisance, concluding that federal common law has been displaced by the federal regulatory scheme under the Clean Air Act, which, as interpreted by the Supreme Court's 2007 opinion in Massachusetts v. EPA, reaches greenhouse gases as well as more traditional "criteria" pollutants. The Supreme Court's denial of certiorari appears to be the last gasp for climate lawsuits based on the federal common law. (Native Village of Kivalina v. Exxon Mobil Corp. et al. (Sup. Ct. Docket No. 12-1072).

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D.C. Circuit Upholds Endangered Species Act Listing of Polar Bear

March 1, 2013

In a decision with strong overtones for climate policy and federal permitting of projects that release greenhouse gases, the U.S. Court of Appeals for the D.C. Circuit today affirmed the U.S. Fish & Wildlife Service's ("FWS") decision to list the polar bear under the Endangered Species Act ("ESA"). The FWS decision, which is based on the danger to polar bear populations caused by declining sea ice in the Arctic, is one of the first major federal policies to address the consequences of climate change. Further, the decision means that projects releasing major quantities of greenhouse gas emissions may run afoul of the ESA, and that consultation with FWS under the ESA may become a routine regulatory requirement for such projects.

Legally, the decision is rather unremarkable. The petitioners, a group of industries, states, and aligned interests, challenged the FWS's listing decision on a number of technical grounds. But, as the D.C. Circuit observed, the challenges amount to "nothing more than competing views about policy and science." Under the familiar "arbitrary and capricious" standard of review for decisions of administrative agencies, such disagreements are insufficient to overturn an agency decision. Rather, as long as the agency has considered all the evidence, adequately explained its decision, and acted within the law, its decision, even if controversial, is not arbitrary and capricious. The D.C. Circuit concluded that the FWS did not act arbitrarily in the face of numerous challenges to its listing decision.

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