EPA Publishes First-Of-Its-Kind Framework for Considering Cumulative Impacts Across Agency Actions
On November 21, 2024, the U.S. Environmental Protection Agency (EPA) published Notice of a newly developed draft framework intended to provide all EPA programs with a shared reference point for determining when and how to analyze or consider cumulative impacts—defined broadly to include the totality of exposures to combinations of environmental stressors and their effects on health and quality-of-life outcomes. Keeping pace with the Biden administration EPA’s environmental justice drive, key goals of the Interim Framework for Advancing Consideration of Cumulative Impacts include empowering EPA to (1) more fully and accurately characterize the realities communities face, (2) pinpoint the levers of decision making and identify opportunities for interventions that improve health and quality of life while advancing equity, and (3) increase meaningful engagement, improve transparency, and center actions on improving health and environmental conditions in communities.
U.S. EPA Power Plant Effluent Rule Allowed to Go Into Effect
On October 9, 2024, the Eighth Circuit refused to block new U.S. Environmental Protection Agency (EPA) wastewater limits for coal-fired power plants. In Southwestern Electric Power Co., et al v. EPA, et al, multiple states, trade groups, and utility companies challenged EPA’s May 2024 Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (ELG Rule).
Congress Passes ADVANCE Act to Facilitate U.S. Development of Advanced Nuclear Reactors
On June 18, 2024, the U.S. Senate passed the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy (ADVANCE) Act to accelerate the deployment of nuclear energy capacity, including by accelerating the licensing and creating new incentives for advanced nuclear reactor technologies, among them small modular reactors. The Senate introduced the ADVANCE Act in March 2023, and the House of Representatives passed the Fire Grants and Safety Act, which contains the ADVANCE Act, on May 8, 2024. Now that both houses have passed the Act, it will go to President Joe Biden for signature. Full text of the ADVANCE Act as passed by the Senate can be found here on page 4.
Vermont and New York Climate Acts are First in a Wave of Likely Climate Change Cost Recovery Laws
On May 30, 2024, Vermont’s Republican governor, Phil Scott, allowed Vermont’s S 259 — also referred to as the “Climate Superfund Act” — to become law without his signature. The stated goal of this law is to mitigate the impacts of climate change.
U.S. Wildlife Agencies Propose Rules to Reinstate Longstanding Endangered Species Act Regulations
On June 22, the U.S. Fish and Wildlife Service and National Oceanic and Atmospheric Administration published a series of proposed rules pursuant to the Endangered Species Act (the Act), seeking to clarify or reverse implementing regulations issued in 2019 during the Trump administration. The agencies jointly proposed two rules—one revising Section 7 regulations, related to interagency consultations, and a second revising Section 4 regulations, related to listing decisions and critical habitat designations. The Fish and Wildlife Service independently proposed a third rule to reinstate the general application of “blanket rule” options for protecting newly listed threatened species pursuant to Section 4(d) of the Act.
White House Announces New ‘Ocean Justice Strategy’
On June 7, 2023, the White House Council on Environmental Quality (CEQ) published a request for information (RFI) in the Federal Register seeking input on its planned Ocean Justice Strategy (the “Strategy”). The RFI describes the Strategy as an effort to integrate environmental justice principles into ocean-related activities of the federal government. The Strategy could have wide-ranging impacts on the development of ocean energy resources.
PJM Limits Renewable Energy Resource Capacity Values for Allocation of Capacity Interconnection Rights
On April 7, 2023, the U.S. Federal Energy Regulatory Commission (FERC) issued an Order Accepting Tariff Revisions Subject to Condition (183 FERC ¶ 61,009) approving a PJM Interconnection LLC (PJM) proposal to limit the power capacity values of wind, solar, and hybrid resources within PJM’s recently adopted grid reliability framework.
IRS Proposed Rule on Revived Superfund Chemical Taxes
On March 29, 2023, the U.S. Internal Revenue Service (IRS) published a Proposed Rule to amend the Environmental Tax Regulations, 25 C.F.R. part 52, specifically those provisions governing the chemical excise taxes used to fund the Hazardous Substance Response Trust Fund established pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)—known as the Superfund Chemical Tax. Because this is the first time the tax will be applied in over 25 years, its effects may not be well understood by affected industry taxpayers, and the IRS’s Proposed Rule offers critical guidance. Companies engaged in the manufacturing, import, or sale of taxable chemicals should evaluate the Proposed Rule and consider submitting comments by the May 30, 2023, deadline.
U.S. House Passes GOP Energy Bill
On Thursday, March 30, 2023, the U.S. House of Representatives passed HR 1, the Lower Energy Costs Act. The bill — the GOP’s energy policy and permitting bill — passed by a vote of 225 to 204, with four Democrats joining Republicans in voting to pass the bill and one Republican legislator voting against it.
FERC v. Powhatan Energy Fund, LLC Saga Ends With Default Judgment Against Powhatan Energy Fund
On March 22, 2023, the U.S. District Court for the Eastern District of Virginia (Court) granted the Federal Energy Regulatory Commission’s (FERC) Motion for Default Judgment and entered a default judgment against Powhatan Energy Fund, LLC (Powhatan Energy Fund). The Court awarded FERC $3,465,108 in disgorgement and $16,800,000 in civil penalties.
