The U.S. Supreme Court has delivered a stunner with its decision this morning in Utility Air Regulatory Group v. Environmental Protection Agency. The Supreme Court has curtailed the U.S. Environmental Protection Agency’s (EPA) regulation of stationary source greenhouse gas (GHG) emissions under two Clean Air Act permitting programs – New Source Review Prevention of Significant
Act
U.S. Supreme Court Hears Arguments in Landmark Case on Federal Greenhouse Gas Regulation
My colleague, Daniel Lee, followed oral argument yesterday in the U.S. Supreme Court’s consideration of federal greenhouse gas (GHG) regulation in Utility Air Regulatory Group v. EPA, and provides this analysis:
During oral argument for Utility Air Regulatory Group v. EPA this Monday, the Supreme Court conflicted over a number of issues including the application of…
Fiscal Cliff Bill Includes PTC Extension and Other Energy-Related Provisions
Congress yesterday passed the American Taxpayer Relief Act of 2012 (the Act), which averted the so-called “fiscal cliff.” The President is expected to sign the Act shortly.
The Act includes a number of energy-related tax provisions, including a one-year extension and modification of the production tax credit under Section 45 of the Internal Revenue Code (the PTC) for certain renewable energy facilities. The energy-related provisions in the Act include:
- PTC Extensions and Modifications – The PTC is extended and modified for certain types of facilities. These extensions and modifications include:
- In the case of wind, geothermal, landfill gas, trash, marine, and hydrokinetic facilities and certain closed-loop biomass, open-loop biomass, and qualified hydropower facilities, the PTC will apply if construction begins before January 1, 2014 (rather than if the facilities are placed in service before January 1, 2014). The Act does not specify what it means to begin construction for this purpose, although there are analogous authorities that have been adopted for other purposes that may be applied. Note, however, that a facility to which this extension applies may qualify for the PTC even if it is not placed in service before January 1, 2014.
- The PTC for municipal solid waste facilities is modified to exclude from the definition of municipal solid waste certain paper that is commonly recycled and that has been segregated from other solid waste.
- The election to claim the investment tax credit rather than the PTC for certain facilities is extended to apply to certain facilities with respect to which construction begins prior to January 1, 2014.
- The PTC for Indian coal production facilities is extended for one year, to apply to sales of qualified production during the eight-year period (rather than the previous seven-year period) beginning on January 1, 2006.
- In the case of wind, geothermal, landfill gas, trash, marine, and hydrokinetic facilities and certain closed-loop biomass, open-loop biomass, and qualified hydropower facilities, the PTC will apply if construction begins before January 1, 2014 (rather than if the facilities are placed in service before January 1, 2014). The Act does not specify what it means to begin construction for this purpose, although there are analogous authorities that have been adopted for other purposes that may be applied. Note, however, that a facility to which this extension applies may qualify for the PTC even if it is not placed in service before January 1, 2014.
Continue Reading Fiscal Cliff Bill Includes PTC Extension and Other Energy-Related Provisions
Newly Published CEQA Decision Sets Precedent Regarding EIR Project Alternatives
A legal update from my colleagues Barbara Brenner and Kristen Castaños:
We are pleased to report that the California Third District Court of Appeal recently granted our request to publish its decision in a California Environmental Quality Act (CEQA) case in which we were lead counsel. In a challenge to the certification of an…
California Judicial Council Announces Expedited CEQA Litigation Court Rules for Qualifying Development Projects
From our colleague Wayne Rosenbaum:
As Juliet Cho blogged about in our California Environmental Law blog, California Governor Jerry Brown signed the Jobs and Economic Development through Environmental Leadership Act of 2011 (also known as AB 900) into law last September. The law aims to provide an incentive for applicants to move forward…
FERC Rules Against Bonneville Power Administration’s Environmental Redispatch Policy
A legal update from our colleagues Steve Hall, Dina Dubson and Jason Johns:
On December 7, 2011, the Federal Energy Regulatory Commission issued an order holding that the Bonneville Power Administration violated Section 211A of the Federal Power Act by curtailing wind energy under BPA’s Environmental Redispatch policy and requiring BPA to file a…
The Bureau of Land Management, Tribal Cultural Resources and Renewable Energy Development
My collegue Michael O’Connell issued the legal alert below on a recent significant Interior Board of Land Appeals decision concerning the intersection of tribal cultural resources and a BLM geothermal lease application:
The Interior Board of Land Appeals (IBLA or Board) decision, Earth Power Resources, 181 IBLA 94 (May 12, 2011), deals with BLM action on a geothermal lease application in Nevada. Citing National Historic Preservation Act (NHPA) section 304, 16 U.S.C. § 470w-3, BLM withheld from a geothermal lease applicant an ethnographic study of Ruby Valley that identified a tribal traditional cultural property (TCP) important to an Indian Tribe and disapproved the lease application in order to protect the TCP. The Board overturned BLM’s decision and remanded the case for further action.Continue Reading The Bureau of Land Management, Tribal Cultural Resources and Renewable Energy Development
Supreme Court Dismisses Common Law GHG Case Against Energy Producers
On June 20, 2011, the U.S. Supreme Court issued an opinion on American Electric Power Co., Inc., et al. v. Connecticut, et al.
This case is significant because it dismissed a lawsuit in which several states and environmental groups sought court orders requiring large electrical utilities (alleged to be “the five largest emitters of carbon…
Ninth Circuit Decision Further Dismantles an Already Weakened Federal Transmission Siting Authority
Congress’ experiment with establishing federal siting authority for transmission lines suffered another setback after a Ninth Circuit Court of Appeals decision issued yesterday, February 1, 2011, vacated the Department of Energy’s (“DOE”) 2007 Transmission Congestion Study that had designated national interest electric transmission corridors in mid-Atlantic and Southwestern states. This ruling is the latest of…
California Adopts its Cap-and-Trade Program for Greenhouse Gas Emissions
After a full day of testimony and deliberation on December 16, 2010, the California Air Resources Board (ARB) adopted the state’s Cap-and-Trade Program on a 9-to-1 vote. The Program is promulgated under the California Global Warming Solutions Act (A.B. 32) as a market-based compliance mechanism to help achieve reduction of the state’s greenhouse gas (GHG)…