Results tagged “Department of Ecology” from GTH Energy & Natural Resources Law Blog

Ninth Circuit Rejects Petition Seeking Regulation of Greenhouse Gases in Washington

October 25, 2013

Two October decisions of the federal courts are likely to have significant implications for regulation of greenhouse gases ("GHG") under the Clean Air Act. Of greatest note for the State of Washington, the Ninth Circuit last week overturned a lower court's order that would have required the Washington Department of Ecology ("Ecology") to set standards limiting GHG emissions from Washington's five oil refineries. The Court of Appeals concluded that the environmental plaintiffs lacked standing to bring their complaint. (Washington Environmental Council v. Bellon, No. 12-35323 (issued Oct. 17, 2013)).

In that case, two environmental groups filed a lawsuit in U.S. District Court under the Clean Air Act's citizen suit provisions arguing that Ecology, which administers the Clean Air Act in Washington under an EPA-approved State Implementation Plan, is obligated to set GHG emissions limits on the five refineries under the Act's "Reasonably Available Control Technology" requirements. The District Court agreed, ordering Ecology to develop GHG emissions limits for the five oil refineries by 2014.

Continue reading "Ninth Circuit Rejects Petition Seeking Regulation of Greenhouse Gases in Washington" »

Washington Supreme Court: Water Pollution Control Act Covers Non-Point Pollution, Takings Claim Rejected

August 15, 2013

The Washington Supreme Court today issued an opinion reading the state's Water Pollution Control Act ("WPCA") broadly to cover non-point sources and concluding that the Washington Department of Ecology ("Ecology") is authorized to issue orders to control non-point sources even without definitive proof that the non-point source is a direct cause of water pollution. The Court also rejected a claim of an unconstitutional "taking" for lack of a sufficient evidence. The opinion substantially strengthens Ecology's hand in dealing with non-point sources, and may result in stronger enforcement action aimed at, for example, requiring landowners to implement "Best Management Practices" to help control non-point pollution. (Lemire v. State of Washington, Dept. of Ecology, No. 87703-3 (issued Aug. 15 2013)).

The case arises from a lengthy dispute between Ecology and Columbia County rancher Joseph Lemire concerning pollution in Pataha Creek, which runs through Lemire's property. Ecology identified Pataha Creek as polluted under the state's water quality assessment, which is required under the federal Clean Water Act. In a 2003 evaluation of Columbia County's watersheds, Ecology and the Columbia Conservation District identified conditions on Lemire's ranch that were detrimental to water quality. These included, for example, overgrazing, damage to riparian vegetation, and excrement in the riparian zone, which Ecology believes likely contributed to high water temperatures, reduced dissolved oxygen, damage to aquatic life, and the presence of pathogens in the water. To remedy these problems, Ecology recommended measures such as construction of fences to exclude cattle from the riparian zone and off-stream watering troughs. Eventually, after unsuccessfully negotiations with Lemire, Ecology ordered him to implement these measures, relying on the WPCA to justify its action.

Continue reading "Washington Supreme Court: Water Pollution Control Act Covers Non-Point Pollution, Takings Claim Rejected" »

Wind War Subplot: Challenge to Washington Gas Limits Fails, Barrier to Increased Spill Remains in Place

December 11, 2012

Washington State's Court of Appeals recently upheld the Washington Department of Ecology's decision to retain existing water quality standards limiting dissolved gases at hydroelectric dams. The decision carries significance well beyond the specific dispute resolved by the court because it limits one avenue -- increased spill -- that may have relieved some of the pressure on the Bonneville Power Administration ("BPA") to integrate increasing amounts of variable wind generation into the regional grid. As we have previously reported, BPA's decision to require curtailments of wind generation during high-wind/high-water events has produced contentious litigation, pitting the Northwest's wind generators against BPA and its public power customers. Although it does not directly address the issues involved in that litigation, the Court of Appeals decision nonetheless has significant bearing on the BPA litigation because it means that BPA's non-curtailment options will continue to be limited.

The Court of Appeals case, Northwest Sportfishing Industry Association v. Department of Ecology, arose from a petition filed by a group of fisheries and environmental advocates asking the Department of Ecology to raise its Total Dissolved Gas ("TDG") standards to accommodate greater flows over the dams. TDG standards are aimed at preventing damage to fish and other aquatic species from gas-bubble trauma. Gas-bubble trauma occurs when excessive levels of atmospheric gases in the water column are absorbed by aquatic creatures and then released in their tissues as gas bubbles, much like "the bends" in a human diver. Gas-bubble trauma can cause significant physiological damage or even death, and is therefore of concern for the Columbia Basin's salmon and steelhead runs, including several listed under the Endangered Species Act. The fisheries advocates who filed the petition believe that TDG limits can be raised by the Department of Ecology without threatening significantly greater damage to fisheries from gas-bubble trauma, and that higher TDG limits will accommodate greater spill over the Columbia Basin's dams, leading to an improvement in the survival of salmon smolts migrating downstream.

Greater latitude for spill would also give BPA some additional flexibility to manage springtime conditions, in which high run-off in the river system often coincides with high winds and high power production from the region's wind fleet. In such conditions, BPA has sometimes curtailed production from wind generators because generation during periods of high wind combined with production from federal dams in the region exceeded the demand during that period. An additional margin for spill would allow BPA to spill additional water over the Columbia Basin's dams rather than running it through turbines (which produces significantly lower concentrations of dissolved gas but also power when it is not always needed). Because less power would then be produced by hydroelectric turbines, there would be a greater margin for allowing wind generators to produce without curtailments.

Continue reading "Wind War Subplot: Challenge to Washington Gas Limits Fails, Barrier to Increased Spill Remains in Place" »