Ninth Circuit Agrees With Other Circuits In Barring Pre-Enforcement Challenges To Clean Water Act Administrative Compliance Orders

The U. S. Court of Appeals for the Ninth Circuit has joined the Fourth, Sixth, Seventh and Tenth Circuits in holding that the Clean Water Act precludes pre-enforcement review of compliance orders alleging violations of the Act. Court RulingIn an opinion issued September 17, 2010 (Sackett v. EPA), the court ruled that landowners who had allegedly violated the Clean Water Act by filling in their property without first obtaining a permit could not challenge the compliance order until EPA started an enforcement action in federal court.

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EPA Holds Hearings on Hydraulic Fracturing

Water Quality

Hydraulic FracturingAs part of a broad investigation into the practice of pressurized injection of water, sand, and chemicals to extract natural gas from shale, known as hydraulic fracturing or fracking, the Environmental Protection Agency (EPA) held several public hearings this week in Binghamton, New York. Hydraulic fracturing operates by the pressure of the injected materials exceeding the rock strength and the fluid then opening or enlarging fractures in the rock. As the formation is fractured, a “propping agent,” such as sand or ceramic beads, is pumped into the fractures to keep them from closing as the pumping pressure is released.

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EPA Takes Steps Under The Clean Water Act to Protect California’s Coastline

Water Quality

On August 25, 2010, the Environmental Protection Agency (EPA) proposed the nation’s largest coastal “No Discharge Zone,” covering California’s entire 1,624 miles of coastline. Pursuant to the federal Clean Water Act, states may request EPA to establish vessel no-discharge zones to protect and restore water quality. Non-sewage discharge from vessels is regulated under state law. Acting pursuant to California’s Clean Coast Act of 2005, the State Water Resources Control Board requested EPA to adopt the protective zone.
San Francisco Cruise Ship

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Kerry to Settle For Clean Energy Bill?

Clean Technology

Senator John KerryWith the collapse of the Senate’s intention to consider even a scaled-down cap and trade bill before its August recess, Senator John Kerry (D-MA) has re-entered the fray. Kerry, along with Senator Joe Lieberman (I-CT), earlier introduced the American Power Act, a major component of which was a multi-sector cap and trade requirement. When it became clear that the American Power Act could not garner the 60 votes necessary for passage, an electric utility-only cap and trade bill was discussed as a substitute. That concept also received insufficient traction and was subsequently replaced by a bill responding to the Gulf oil spill and also containing funding for energy efficiency programs and natural gas vehicle incentives. However, that bill, too, was postponed until at least after the Senate’s August recess.
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Senate to Defer on Cap and Trade

Climate Change

Senate Majority Leader Harry Reid (D-NV) announced that the scaled-down energy bill he intends to introduce before the August recess will not include either a cap and trade provision or a renewable energy portfolio requirement. Acknowledging that he could not command 60 votes for Harry Reideven a utility-only cap and trade program, Reid will push for more limited energy legislation covering a response to the Gulf oil spill, energy-efficiency retrofit programs, incentives for the production and purchase of natural gas vehicles, and additional appropriations for the Land and Water Conversation Fund.

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Prospects for Utility-Only Cap and Trade Bill Remain Unclear

Climate Change

ElectricityAlthough Senate Majority Leader Harry Reid (D-NV) plans to introduce energy legislation by the end of July, it is uncertain if, and to what extent, the bill will include a cap and trade provision. Reid continues to state that he will bring a four-part energy and climate package to the Senate floor in the next two weeks, but prospects for any cap and trade component have seemingly dimmed among the most vocal supporters. Reid has expressed his preference for a bill containing four key elements: a response to the Gulf of Mexico oil spill, promotion of energy efficiency, stimulus for clean energy production, and a cap on carbon emissions from power plants. However, Reid has warned he will not include any provisions that are not certain to gain 60 votes.

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Tea Leaf Reading From Murkowski Resolution Vote?

Climate Change

Acting pursuant to the Congressional Review Act, Senator Lisa Murkowski (R-AK) introduced a “resolution of disapproval” seeking to veto EPA’s endangerment finding regarding greenhouse gas (GHG) emissions. Senator Lisa MurkowskiThe endangerment finding is the foundation for EPA’s vehicle emission standards and the newly adopted regulations covering GHG emissions from stationary sources. While failing by 47 – 53 on a procedural vote to allow the resolution to proceed, saving the Senators from a rare roll call vote on climate policy, the Resolution may provide some insight into the views of undecided lawmakers.

Republican Senators unanimously supported Murkowski and six Democrats (Jay Rockefeller (WV), Ben Nelson (NE), Mary Landrieu (LA) Evan Bayh (IN), and Mark Pryor and Blanche Lincoln (AR)) also voted to allow the Resolution to proceed. Rather than focus on the climate change implications of the Resolution, Democratic Senators opposing the Resolution couched their comments in terms of energy policy and protection of “Big Oil.” Republicans took a similar tack emphasizing the energy and economic ills of EPA action with Mitch McConnell (R-KY) calling EPA’s regulations a “back-door national energy tax.”
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Timing and Incentives Differentiate Senate and House Climate Bills

Climate Change

Although Senators Kerry (D-MA) and Lieberman’s (I-CT) recently released American Power Act and the American Clean Energy and Security Act, passed by the House in June 2009, call for identical reductions in greenhouse gas (GHG) emissions of 17% below 2005 levels Congressby 2020 and 83% below those levels by 2050, they differ in several important respects:

  • The American Power Act begins regulating GHG emissions from electric utilities, transportation fuels and refined oil products in 2013. The regulatory scheme expands in 2016 to include large industrial sources and natural gas distributors. Conversely, the House bill would begin regulating electricity production, transportation fuels, and refined oil products in 2012 and add industrial sources in 2014.

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Coastal Senators Seek Increased Liability for Oil Spills

Water Quality

In the wake of the massive Gulf Coast oil spill, three coastal Senators have introduced legislation entitled the “Big Oil Bailout Prevention Act.” The bill was introduced on May 3, 2010 by Senators Robert Menendez (D – NJ), Frank Lautenberg (D – NJ), and Bill Nelson (D – FL).
Under the current law, the Oil Pollution Act of 1990, liability for economic damages, such as lost business revenues from fishing and tourism, resulting from an oil spill is capped at $75 million, although unlimited damages are available in certain situations, such as a finding that the operator was grossly negligent or violated federal laws or regulations. Once that cap is reached, claimants can seek reimbursement from the Oil Spill Liability Trust Fund, which was created through a tax on produced and imported oil.
Gulf of Mexico Oil Leak

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Reid – Graham Standoff Continues on Senate Climate Change Legislation

Climate Change

The Kerry-Lieberman-Graham Senate climate change bill that was scheduled for a public unveiling on April 26, 2010 remains under wraps. Days before its scheduled introduction, Sen. Graham (R-SC) withdrew his support for the legislation he had been working on with Senators Kerry (D – MA) and Lieberman (I – CT) for months. Graham’s action was the result of Majority Leader Harry Reid’s (D – NV) failure to assure him that the Senate would not begin consideration of an immigration reform bill before or at the same time the global warming and energy legislation undergoes floor debate. The Kerry-Lieberman-Graham bill is thought to contain more incentives for industry than the bill passed by the House earlier this year, such as increased funding for oil exploration and nuclear energy and a preemption on states’ and EPA’s ability to regulate greenhouse gases under the Clean Air Act.

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