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Ed. – originally authored by Kevin Johnson and Thomas Wood.

The U.S. Supreme Court’s order on February 9, 2016 staying EPA’s implementation of the Clean Power Plan (CPP) will create at least a year of uncertainty about the shape of the future electric power regulatory framework, with implications for states, utilities and other electric power providers, and for the many other stakeholders potentially affected by the CPP. The CPP is the regulatory program issued by EPA on October 23, 2015, that requires states to develop plans to reduce carbon (CO2) emissions by meeting either state-specific mass caps (tons/year) or state-specific emission rate intensity limits (lb/netMWh).   The CPP seeks to establish a whole new style of regulation using authority under section 111(d) of the Clean Air Act.

Supreme Court Halts CPP Implementation

Twenty-nine (29) states and a number of utilities, labor unions and trade associations challenged the legality of the CPP.  These appellants sought a stay of the rule from the D.C. Circuit in November 2015.  The petition for a stay was denied on January 21, 2016.  The appellants then appealed to the U.S. Supreme Court — a move that most pundits thought was futile as it is extremely rare for the Supreme Court to grant such a stay.  In order to grant a stay, the Court needed to find that if the D.C. Circuit were to uphold the CPP, (1) there is a reasonable probability that four Supreme Court Justices would vote for review of the D.C. Circuit opinion; (2) there is a fair prospect that a majority of the Supreme Court would vote to reverse the D.C. Circuit’s opinion upholding the CPP; and (3) that there is a likelihood that immediate, irreparable harm would result from the denial of a stay.  By granting the stay, it appears that five of the nine Supreme Court justices (Roberts, Scalia, Alito, Kennedy and Thomas) indicated that they believe there is a fair prospect that they would vote to overturn the D.C. Circuit were the D.C. Circuit to uphold the CPP.  The Court’s action prevents EPA from further implementation of the CPP until the petitioners’ appeal is decided. The underlying challenge to the CPP is proceeding on an expedited schedule with oral argument set for June 2 and 3, 2016.

In addition, another factor in the Court’s stay decision was likely the pending deadlines for states to take compliance actions. The deadline for states to submit initial plans demonstrating how they would comply with the CPP was September 6, 2016.  While virtually all states were likely to request an extension for plan submittal until September 2018, states still needed to show progress on their plans by this September, and many states, including several of the 29 appellant states, were beginning the planning process.

Next Steps: Back to the D.C. Circuit
Continue Reading U.S. Supreme Court Stays Clean Power Plan Implementation: Next Steps

In April 2015, the U.S. Fish and Wildlife Service (“Service”) published a final decision to list the northern long-eared bat as threatened and, rather than publishing a final 4(d) rule, opted to publish an interim 4(d) rule and open a 90-day comment period to gather additional information and potentially refine the interim 4(d) rule.

As we discussed in a post last year, the effect of the interim 4(d) rule depended on the location of a particular activity. For areas of the country not affected by white-nose syndrome, the interim 4(d) rule exempted incidental take from all activities.  For areas of the country affected by white-nose syndrome, the interim 4(d) rule exempted from Endangered Species Act take prohibitions the following activities: (1) forest management practices, (2) maintenance and limited expansion of transportation and utility rights-of-way, (3) prairie habitat management, and (4 ) limited tree removal projects, provided these activities protected known maternity roosts and hibernacula.  Under the interim 4(d) rule, those activities were exempted provided: (1) the activity occurred more than 0.25 mile (0.4 km) from a known, occupied hibernacula, (2) the activity avoided cutting or destroying known, occupied roost trees during the pup season (June 1–July 31), and (3) the activity avoided clearcuts (and similar harvest methods, e.g., seed tree, shelterwood and coppice) within 0.25 mile (0.4 km) of known, occupied roost trees during the pup season (June 1–July 31).  Thus, with a few narrow exceptions, the interim 4(d) rule prohibited all incidental take within areas of the country affected by white-nose syndrome, including take resulting from the operation of utility-scale wind turbines.
Continue Reading U.S. Fish and Wildlife Service Issues Final 4(d) Rule for Northern Long-Eared Bat Under Endangered Species Act

In Paris over the weekend nearly 190 countries reached a landmark international agreement on climate change. My friend Gerard Wynn of GWG Energy has written an excellent explainer on exactly what was agreed to. Gerard has kindly agreed to let us share his post with Renewable + Law blog readers. His post follows below.

[Originally published on the Carbon & Climate Change Blog]

The world concluded four years of negotiations on Saturday with the first universal agreement on climate change. Nearly 190 countries pledged national climate action, and all countries agreed a global long-term goal to phase out greenhouse gas emissions this century, suggesting a turning point in the use of fossil fuels.

The Paris outcome has two parts.

1. A 12-page “Paris Agreement”, which sets out new commitments for climate action beyond 2020, and potentially through this century.
2. A 20-page “Decision”, which describes what countries have to do before the Agreement enters into force in 2020.

Following is an attempt to decipher what all the wonky language means.Continue Reading Guest Post: Decoding the Paris Climate Agreement

Xcel Energy announced this afternoon its intent to cease coal-fired generation at Sherco Units 1 and 2 in 2026 and 2023, respectively, while adding 1,200 MW of new renewable sources (800 MW of wind and 400 MW of solar) by 2020.  According to the Xcel Energy website, Sherco Unit 1 has a generating capacity…

In a speech at the Rocky Mountain National Wildlife Refuge, Interior Secretary Sally Jewell announced yesterday that the U.S. Fish and Wildlife Service (USFWS) will not list the greater sage-grouse under the Endangered Species Act (ESA). Finding that protection under the ESA is no longer warranted due to an “unprecedented conservation partnership,” the USFWS announced that it was withdrawing the species from the candidate list.   The decision comes roughly a week before a court-ordered deadline for a decision.
Continue Reading U.S. Fish and Wildlife Service Determines Protection for Greater Sage-Grouse No Longer Warranted

On Saturday, June 13, Governor Dayton signed the 2015 Jobs and Energy Bill into Law.  Our prior coverage of this bill can be found here and here.  The following amendments were made after the Governor’s veto:

  • New definitions for “propane,” “propane storage facility,” and “synthetic gas.”
  • New net metering provision that applies to

…

As a follow up to our prior coverage, Governor Dayton vetoed the jobs and energy bill that passed in the final few minutes of the 2015 regular legislative session.  Governor Dayton’s veto letter can be found here.

After significant negotiations, the legislature finally posted a revised version of the legislation in its 2015 1st…

Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register announcing that it intends to prepare a programmatic environmental impact statement to evaluate the effects of a program that would authorize incidental take under the Migratory Bird Treaty Act (“MBTA”). Although the Service has MBTA regulations that authorize the issuance of permits to take migratory birds for specific purposes (e.g. scientific collection, bird banding and marking, raptor propagation), there is presently no permit to authorize take that occurs incidental to, and which is not the purpose of, an otherwise lawful activity. Companies potentially impacted include those involved in the oil and gas sector, telecommunications, energy transmission infrastructure, and solar and wind energy generation.

Through this rulemaking, the Service will evaluate various approaches to regulating incidental take of migratory birds, including:
Continue Reading USFWS to Evaluate New Incidental Take Permitting Program Under the Migratory Bird Treaty Act

In a long-anticipated move, the U.S. Fish and Wildlife Service (“Service”)has published a final listing decision and interim rule on the northern long-eared bat. The Service listed the northern long-eared bat as threatened under the Endangered Species Act (“ESA”), and, rather than publishing a final 4(d) rule, opted to publish an interim 4(d) rule and…