We invite you to join us June 6 in Tacoma for a conference entitled "Re-Using Contaminated Land: Transactions & Technologies." The conference will address the legal and technical aspects of "brownfields" development. Gordon Thomas Honeywell is proud to be a premiere sponsor of the conference. The agenda and other information is available here.
Recently in environmental regulation Category
In the latest chapter of decades-long litigation over the treaty rights of Washington's Native American tribes, the U.S. District Court for the Western District of Washington recently ordered three Washington state agencies to remove culverts from state-managed roads that block access to salmon spawning habitat. (U.S. v. Washington, No. CV 70-9213 (issued March 29, 2013)). The order requires culvert replacement to be completed by the fall of 2016 on state recreational lands, and by 2030 on highways administered by the Washington State Department of Transportation ("WSDOT").
The litigation has roots dating all the way back to Washington's earliest days as a U.S. territory. Among other duties, Isaac Stevens, Washington's first territorial governor, entered a series of treaties with Washington's Native American tribes. In return for ceding large amounts of land, the Stevens treaties provided: "The right of taking fish at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory." More than a century later, this language became the linchpin of the U.S. District Court's foundational 1974 opinion, United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), which held that the Stevens treaties entitled the tribes to fifty percent of the state's "harvestable" fish. Often called the "Boldt Decision," after its author, the late District Judge George Boldt, the decision was the culmination of a political movement, complete with civil disobediance, celebrity "fish-ins, and sometimes violent clashes. The decision was upheld by the U.S. Court of Appeals for the Ninth Circuit and largely upheld by the U.S. Supreme Court. The practical result of the decision is that Washington's tribes have become "co-managers" of the state's fishery resources.
Poles Left Standing: Ninth Circuit Rejects Claim That Utility Poles Must Be Regulated Under the Clean Water Act and the Resource Conservation and Recovery Act
In an important victory for users of treated wooden poles, the U.S. Court of Appeals for the Ninth Circuit last week concluded that wooden utility poles are neither a "point source" subject to regulation under the Clean Water Act ("CWA") nor a "solid waste" subject to regulation under the Resource Conservation and Recovery Act ("RCRA"). The decision is an important landmark for electric utilities, telecommunications carriers, and other companies using treated wooden poles. If the court had reached the opposite result, these industries could have been subject to burdensome new regulation under both the CWA and RCRA.
The Ninth Circuit's decision, Ecological Rights Foundation v. Pacific Gas & Electric Co., rejects a lawsuit brought under the citizen suit provisions of the CWA and RCRA by a California environmental organization. The environmental plaintiff claimed that PCP and other wood treating chemicals are washed into the environment by rainwater, resulting in a "discharge" of a pollutant requiring the owner of wood poles to obtain a NPDES permit under the CWA. Relying on the U.S. Supreme Court's recent decision rejecting a similar claim with respect to logging roads, the Ninth Circuit rejected this claim, as well. The court found that wooden poles are not a "point source" subject to CWA regulation. In particular, under EPA's approach to regulation of stormwater discharges, governed by 1987 amendments to the CWA, no NPDES permit is required because wood poles are not "associated with industrial activity," as would be the case at an industrial plant or storage area where rainwater is captured and channeled.
Gov. Inslee's Climate Change Study Bill Is The First Energy Legislation to Clear the Washington Legislature
On Monday, the Washington House of Representatives passed ESSB 5802, which creates a "Climate Legislative and Executive Work Group" to study the state's options for achieving significant reductions in greenhouse gases. The bill, which is the first of Gov. Inslee's legislative requests to pass both houses of the legislature, will set the stage for more substantive legislative action on climate change in next year's legislative session.
ESSB 5802 is intended to jump-start the debate on greenhouse gas reduction in the 2014 legislative session by delivering a set of recommended policies to the legislature by the end of 2013. The first step in this process calls for the Climate Legislative and Executive Work Group to retain a politically neutral consultant to carry out a comprehensive study of the policy options for reducing Washington's greenhouse gas emissions, including a baseline assessment of current GHG emissions by sector, a review of programs adopted by the federal government and by other states and neighboring provinces of Canada, and an analysis of the costs and benefits of the various policy options. The study must also examine a range of specifically-designated policies, including, for example, a Renewable Fuels Standard, emissions performance standards, and policies to encourage greater energy efficiency. This initial evaluation will be delivered to Gov. Inslee by October 15, 2013.
Yesterday, the Federal Energy Regulatory Commission ("FERC") and the U.S. Coast Guard ("USCG") released a Memorandum of Understanding ("MOU") designed to simplify and expedite the process of licensing hydrokinetic projects. Hydrokinetic technology, described by FERC Chairman Jon Wellinghoff as an "up and coming resource," includes projects designed to capture the energy of waves, tides, currents, and the free-flow of rivers and streams. The MOU will help coordinate the FERC licensing authority for non-federal hydropower projects with the USCG's authority to over navigation safety, maritime security, and stewardship of marine environmental resources.
The MOU requires applicants for a preliminary FERC hydrokinetic permit to notify the USCG, among other agencies. The USCG will then become a participant in FERC's pre-filing process, and will provide comments to the FERC and the applicant setting forth any concerns it has with a proposed project and identifying any needed studies. If a NEPA process is undertaken, FERC will be the lead agency, with the USCG providing input on, for example, scoping, as well as identifying any USCG concerns a regarding the project that should be considered in the environmental analysis process. The MOU also provides that, by participating in the NEPA process, the USCG agrees not to become a party to the licensing process.
Yesterday's MOU, along with guidelines issued jointly by FERC and the Bureau of Ocean Energy Management, Regulation & Enforcement last year for hydrokinetic projects on the Outer Continental Shelf, demonstrate that FERC intends to encourage hydrokinetic resources by reducing regulatory barriers to new hydrokinetic technologies.
If you have any questions about the MOU, FERC licensing, hydrokinetic technology, or other matters involving the development of renewable energy projects, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. These practice groups are consistently recognized as among the best, both nationally and in the Pacific Northwest.
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.
Pesticides and Pacific Salmon: The Long and Winding Litigation Road Gets Longer as the Fourth Circuit Strikes Down NMFS's Biological Opinion
Last week, the U.S. Court of Appeals for the Fourth Circuit struck down the National Marine Fisheries Service's Biological Opinion ("BiOP") concluding that certain pesticides jeopardize endangered Pacific salmonid species. The Fourth Circuit's ruling is the latest volley in litigation dating back more than a decade concerning the impacts of pesticide exposure on endangered salmon and steelhead. Because the Fourth Circuit remanded the BiOp for further action, the Court's opinion will not be the last word.
The litigation has its roots in the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), which requires the Environmental Protection Agency ("EPA") to register pesticides before they can be sold. Under 1988 amendments to FIFRA, EPA is required to re-register any pesticide that was originally registered prior to 1984 and, in doing so, to examine data concerning, among other things, whether the pesticide has "unreasonable adverse effects" on the environment. The first shot in the litigation war was fired in 2001, when a coalition of environmental groups filed suit in the U.S. District Court here in Seattle, successfully arguing that EPA's registration of pesticides is a "federal action." Because registration is a "federal action," EPA is required to consult under the Endangered Species Act ("ESA") with the relevant federal agencies to ensure that registration does not jeopardize the survival of listed species. The District Court's opinion requiring consultation was affirmed by the U.S. Court of Appeals for the Ninth Circuit in 2005.
Gov. Inslee Fills Key Energy and Natural Resource Positions With A Mix of Insiders and Experienced Government Hands
With this week's announcement that David W. Danner has been appointed the new Chairman of the Washington Utilities & Transportation Commission ("UTC"), Washington Governor Jay Inslee has completed the slate of key positions influencing energy and natural resources policy in the state. The key appointments are a mixture of long-time Inslee confidants and individuals with long experience in state government.
Mr. Danner is typical of Inslee appointees who have worked for many years in Washington state government. Mr. Danner has served since 2005 as the Executive Director of the UTC. Prior to that, he served as Gov. Gary Locke's policy advisor on energy and environmental issues, and served on the State's Pollution Control Hearings Board and Shoreline Hearings Board. Mr. Danner will fill the seat recently vacated by Commissioner Patrick Oshie. He will replace Jeff Goltz as UTC Chair, although Commissioner Goltz will continue to serve on the UTC along with Commissioner Phil Jones.
Other key appointments include:
Ocean Energy On the Move in the Northwest: Oregon Adopts New Rules, FERC Finds No Significant Environmental Impacts for Snohomish PUD's Admiralty Inlet Tidal Project
Several recent developments in Oregon and Washington suggest that ocean energy -- electric generation driven by wave and tidal action -- is about to step onto the renewable energy stage in the Pacific Northwest. These developments include important policy changes in Oregon and the achievement of a major milestone for Washington's most important tidal energy project.
In Oregon, the state's Land Conservation and Development Commission on January 24 adopted a major amendment of the Oregon Territorial Sea Plan that identifies four areas off the Oregon Coast where renewable energy development will be preferred. The sites, off Camp Rilea, Nestucca, Reedsport, and Lakeside, comprise approximately 25 square miles, about 2% of Oregon's territorial sea. Two of the sites are thought to be ideal for shallow-water technologies and two for deep-water technologies. The Plan also identifies areas where renewable energy development might be permitted if conflicts with existing uses can be avoided or mitigated. These areas comprises roughly 163 square miles, about 11% of Oregon's territorial sea. Finally, the Plan identifies areas that will remain off limits to ocean energy development due to potential conflicts with existing uses, sensitive ecosystems, and similar concerns.
The amendment has been in the making since 2008, when, faced with a proliferation of FERC preliminary permits for ocean energy exploration and development, then-Gov. Ted Kulongoski declared a moratorium on such development. Since that time, Oregon's Land Development and Conservation Commission has been engaged in an extensive public process to identify existing uses, environmentally-sensitive areas, and important scenic and recreational areas, with the aim of ensuring that ocean energy development does not compromise any of these values. The new amendment is the culmination of that process.
EPA Strains RICE Through the Reliability Screen: Rules on Pollution from Reciprocating Engines Modified To Reflect Reliability Requirements
On January 15, the U.S. Environmental Protection Agency ("EPA") issued new rules governing pollution from Reciprocating Internal Combustion Engines ("RICE") used for emergency electric generation. The new rules have been amended substantially to reflect electric system reliability requirements because RICE are frequently used for emergency and back-up power, helping to prevent blackouts when the grid is strained by outages in primary units, voltage deviations, or other reliability problems. The rules are of particular interest to Northwest entities that may use diesel generators for back-up or reliability purposes. The rules are also of great interest to rural communities in Alaska, which frequently rely on RICE for generating their electric power and for whom the new rule makes some special accommodations.
The new rule amends the limits for hazardous air pollutants ("NESHAP" in EPA-speak) aimed at controlling pollutants such as formaldehyde from stationary RICE, such as diesel-powered generators. Until 2010, stationary engines of 500 HP or less were not regulated under the relevant NESHAP rules. At that time, EPA issued rules that would have extended regulation to stationary engines of this size, but would have allowed limited exemptions for emergency engines operating less than 15 hours per year. Because the 15-hour-per-year limitation did not square with electric industry standards, representatives of the electric industry asked FERC to reconsider this limitation.
U.S. Supreme Court Rejects Ninth Circuit Determination That Moving Water Through A Conduit Is a "Discharge": Dam Operators Remain Safe From Clean Water Act Liability
In a short and unanimous ruling issued yesterday, the U.S. Supreme Court in Los Angeles County Flood Control District v. Natural Resources Defense Council (No. 11-460) rejected the Ninth Circuit's holding that a "discharge" of pollutants occurs when water is moved through a concrete flood control channel into a navigable river. As noted in our November 2 post, this is one of two cases of particular concern to dam operators on the Supreme Court's current docket. The Supreme Court's opinion reaffirms the long-standing doctrine that dams and other water control structures do not "discharge" pollution, the primary test of liability under the Clean Water Act ("CWA"), where those structures merely pass polluted water through the dam works without adding new pollutants. Operators of such facilities can now breath a sigh of relief because the Ninth Circuit's inroad into this doctrine has been eliminated.
The case arises from a citizen suit filed by environmental groups claiming that the L.A. County Flood Control District violated its Clean Water Act ("CWA") permit by allowing excessive levels of pollution in its municipal storm water control system. The District Court rejected the suit, concluding that the Flood Control District had not "discharged" a "pollutant" into the water so as to violate the CWA, but had only transported already-polluted water in the flood control channels, relying on the Supreme Court's holding in South Florida Water Management District v. Miccosukee Tribe. In that case, the Supreme Court held unanimously that no addition of a pollutant occurs that could trigger liability under the CWA when a conveyance merely transfers water from one part of a water body to another without adding any pollutants.
A Lump of Coal in Bonneville's Stocking: FERC Rejects BPA's Plans to Address Overgeneration During High-Wind/High-Water Events
As it was wrapping up business for 2012 and heading off for the holidays, the Federal Energy Regulatory Commission ("FERC") left a lump of coal in Bonneville Power Administration's stocking in the form of two orders rejecting Bonneville's efforts to address wind generation curtailments during periods of over-generation. Together, the orders put Bonneville's efforts to address the over-generation problem nearly back to square one.
As we have previously explained in greater detail, the rapid growth of the Pacific Northwest's wind industry in the last decade has, at times, produced too much of a good thing. When high spring-time flows on the Columbia coincide with high winds in the Columbia Gorge, the combined output of the region's wind generation fleet and the hydroelectric dams exceeds regional electric demand. The situation is further complicated because Clean Water Act standards on dissolved gases designed to prevent gas bubble trauma in aquatic species limit the extent to witch Bonneville can spill water, requiring it to run water through hydroelectric turbines instead.
Oregon Releases 10-Year Energy Plan, Emphasizing Conservation, Renewables, Infrastructure Investment, and Alternative Fuels
On December 17, Oregon Governor John Kitzhaber released Oregon's "10-Year Energy Action Plan," which sets out a long-term framework for Oregon's energy policy. While not binding, the Plan is likely to catalyze action by both the Oregon legislature and Oregon state agencies to carry out the plan's recommendations. Renewable energy producers, utilities, and others in the energy industry will be particularly interested in recommendations that would change Oregon's Energy Facility Siting process, restructuring financing for renewable energy projects, and increase funding for energy-related research and innovation.
The plan is built around three core objectives: (1) to meet 100% of Oregon's electric load growth through energy conservation and efficiency measures; (2) to remove financial and regulatory barriers to development of the infrastructure needed to encourage renewables; and, (3) to transition Oregon's vehicle fleet to electricity or alternative fuels. Many of the specific recommendations to carry out these objectives should be of great interest to those working in the energy industry.
Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit tossed out challenges to the Environmental Protection Agency's proposed new source performance standards for greenhouse gases. The Court concluded in a unpublished order that, because EPA's rules are not yet final, the lawsuits are premature.
The litigation was brought by Las Brisas Energy Center, LLC, which is constructing a 1320-MW generator in Corpus Christi, Texas, that will be fired by petroleum coke. The case was then consolidated with similar challenges brought by a number of other generators. Substantively, the petitions claimed that EPA exceeded its authority under the Clean Air Act by imposing an emissions limit of 1,000 pounds of carbon dioxide per megawatt-hour, regardless of fuel type, without first making the required finding that each generator type makes a "significant contribution" to pollution and without conducting adequate economic analysis.
EPA sought to dismiss the case as premature because the greenhouse gas rules are not yet final. The petitioners argued that the proposed rule had an immediate impact on them because it effectively imposed specific limits on their ability to construct generators going forward, even if not finalized. Yesterday's order rejects this argument. But it is hardly the last word. Similar challenges, and many others, are almost certain to be lodged once EPA issues its final greenhouse gas rules.
If you have any questions about the D.C. Circuit's decision, the regulation of electric generators, or other matters related to the utility industry or environmental law, please contact a member of GTH's Energy, Telecommunications and Utilities practice group or Environment & Natural Resources practice group. Both groups are consistently rated as among the best in the Pacific Northwest.
Floodgates Open to Takings Claims? Supreme Court Finds That Even Temporary Flooding From Government-Owned Dams May Constitute a "Taking"
As reported in our posting of November 2, the U.S. Supreme Court this term is considering two cases of particular significance for dam operators. The first, Arkansas Fish & Game Commission v. United States, was decided last week. The court rejected the proposition that no Fifth Amendment taking can occur from temporary flooding caused by a government-owned dam. This result will give little comfort to dam operators since takings claims will now be decided on a fact-intensive balancing test rather than on the basis of a per se rule that takings can arise only from permanent or predictable periodic flooding.
The case arose from seasonal flooding at the Donaldson Black River Wildlife Management Area ("WMA") in northwest Arkansas caused the U.S. Army Corps of Engineers' Clearwater Dam, located 115 miles upstream in Missouri. In the 1990s, the Corps began to deviate from its accepted operating plan for the Clearwater reservoir in order to reduce damage to crops upstream from the dam. Arkansas sued the Corps, asserting that deviations from operating rules increased flooding in the WMA, damaging hardwoods and reducing the value of the habitat in the WMA. The claim succeeded in the lower court, but the U.S. Court of Appeals for the Federal Circuit, in a split en banc decision, reversed, holding that the flooding was only temporary and therefore could not support a takings claim. This holding was primarily based on Supreme Court takings precedents from 1924 and 1917 involving dams.