SCOTUS Holds that Challenges to the Definition of Waters of the United States Must Be Heard in the U.S. District Courts

Benjamin Stonelake

In a unanimous decision and opinion delivered by Justice Sotomayor on January 22, 2018, in National Association of Manufacturers v. U.S. Department of Defense, the United States Supreme Court (“SCOTUS”) held that challenges to the June 29, 2015 regulation defining the term “waters of the United States” (“WOTUS”) must be filed in the federal district courts. The Court reasoned that the plain text of the judicial review provisions set forth in 33 U.S.C. §1369(b)(1) of the Clean Water Act does not authorize direct challenges to this regulation (the 2015 WOTUS Rule) in the U.S. Circuit Court of Appeals and, therefore, such challenges must be filed in the federal district courts. Continue reading “SCOTUS Holds that Challenges to the Definition of Waters of the United States Must Be Heard in the U.S. District Courts”

Pennsylvania Supreme Court Improperly Expands the Definition of “Commonwealth” in Article I Section 27 of the Constitution to Include Local Governments

Jeremy A. Mercer

The Pennsylvania Supreme Court recently expanded the definition of “Commonwealth” in the Pennsylvania Constitution to include local governments but without any reasoned support. See Pa. Envtl. Def. Found. v. Commw., 161 A.3d 911, 931 n.23 (Pa. 2017) (“PEDF”). In a footnote, which arguably is dicta, the Supreme Court said that the trustee referenced in the “Natural Resources and the Public Estate” provision of Pennsylvania’s Constitution (Article I, Section 27) includes local governments despite the Constitution’s express selection of the “Commonwealth” as the trustee. Continue reading “Pennsylvania Supreme Court Improperly Expands the Definition of “Commonwealth” in Article I Section 27 of the Constitution to Include Local Governments”

Cooling Towers: Not So Cool?

Frederick M. Lowther

Anyone who has been in a tall building looking down on shorter buildings has seen the usual array of mechanical “boxes” with large spinning fans. Those “cooling towers” sit atop tens of thousands of buildings across the country, from hotels to office buildings, hospitals, university and government buildings, and residential towers. Cooling towers also sit adjacent to many industrial facilities, such as petrochemical plants, where cooling by exhaustion of heat is part of the industrial process. More recently, there is the advent of truly enormous data centers, which are the guts of operations of “public cloud” companies, such as Google, Amazon, Apple, Microsoft, Facebook, Oracle, IBM, etc. In many cases, these data centers rely on water-based cooling towers, which control temperatures for the large spaces housing computers/servers, and which are often adjacent to thousands of people. It is now estimated that there are as many as two million cooling towers operating in the United States. Continue reading “Cooling Towers: Not So Cool?”

The Continued Growth of Drones in the Energy Sector

Sean T. Pribyl

The energy industry continues to see a marked growth in the use of drones as they provide cost efficient and time-saving services. For example, drones are being utilized as a tool to accurately inspect oil and gas pipelines, survey large property sites and power lines, and monitor oil wells. The oil and gas industry is also using drones for inspection and surveillance of drilling rigs in offshore operations. And, drones can also be used to check pipelines to identify pipe failures or detect methane leaks, conduct integrity surveys of power and utility industry cables and towers, or inspect onshore and offshore wind turbine farms. Continue reading “The Continued Growth of Drones in the Energy Sector”

Department of Energy Files NOPR Providing for Guaranteed Profits for Nuclear and Coal Plants—Only.

Michael L. Krancer and Frederick M. Lowther

The Department of Energy (“DOE”) last Friday rolled out a Notice of Proposed Rulemaking (“NOPR”) with the Federal Energy Regulatory Commission (“FERC”) that amounts to requiring subsidies for nuclear plants and coal plants. The NOPR is made under the authority of Section 403 of the Department of Energy Organization Act, which allows the DOE Secretary to propose rules to FERC.

If FERC takes the action requested by DOE it would be a sea change in how competitive electricity markets work. Some would say the proposal scraps competitive wholesale electricity markets. See: www.energy.gov/articles/secretary-perry-urges-ferc-take-swift-action-address-threats-grid-resiliency.   Continue reading “Department of Energy Files NOPR Providing for Guaranteed Profits for Nuclear and Coal Plants—Only.”

FERC Responds Quickly and Decisively to D.C. Circuit Remand in Sabal Trail Matter on Downstream GHG Analysis

Michael L. Krancer, Margaret A. Hill, and Stephen C. Zumbrun

The Federal Energy Regulatory Commission (“FERC”) weighed in rapidly and decisively on the Sabal Trail (a/k/a Southeast Market Pipelines or “SMP Project”) case that the D.C. Circuit remanded to it on August 22, 2017.[1] As previously discussed in greater detail by Frederick M. Lowther and Frank Tamulonis, the D.C. Circuit ruled that, in approving the SMP Project, FERC did not but should have considered potential “downstream” greenhouse gas (“GHG”) emissions from power plants burning natural gas supplied by the pipeline when preparing the final environmental impact statement (“FEIS”) pursuant to the National Environmental Policy Act (“NEPA”). In vacating and remanding to FERC, the D.C. Circuit concluded that “at a minimum, FERC should have estimated the amount of power plant carbon emissions that the pipelines will make possible” or if FERC was unable to quantify this amount, FERC should have “explained more specifically why it could not have done so.” Continue reading “FERC Responds Quickly and Decisively to D.C. Circuit Remand in Sabal Trail Matter on Downstream GHG Analysis”

Appellate Division Clears Way for Business Entities to Receive Brownfield Innocent Party Grants When Property Is Transferred among Family Members

Kevin R. Doherty

The New Jersey Appellate Division recently lessened the rigidity by which an innocent purchaser may be eligible for a so-called “Innocent Party Grant” to cover costs associated with the remediation of contaminated property. On September 20, 2017, the Court in Cedar Knolls 2006, LLC v. New Jersey Dep’t of Envtl. Prot.[1] reversed the New Jersey Department of Environmental Protection’s (“NJDEP”) attempt to limit Innocent Party Grants to natural persons, and found that an LLC may qualify as a “person” under the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1, et seq. (“Brownfield Act”). Continue reading “Appellate Division Clears Way for Business Entities to Receive Brownfield Innocent Party Grants When Property Is Transferred among Family Members”