On Friday, March 19, 2011, San Francisco Superior Court Judge Ernest Goldsmith ruled that the California Air Resources Board’s (ARB) attempt to implement the State’s landmark greenhouse gas emissions reduction law with a cap and trade program was premature because the agency did not sufficiently evaluate other alternatives to the program nor submit those alternatives to public comment. Continue reading →

On Tuesday, March 15, 2011, the Energy Tax Prevention Act of 2011 (H.R. 190) passed through Congress’s House of Representatives Energy and Commerce Committee. With a vote of 35-19, the Committee has recommended that H.R. 190 be considered by the House as a whole, and be subject to a full floor vote by the U.S. House of Representatives. The House is expected to vote on the bill before its Easter recess next month. Continue reading →

The Army Corps of Engineers recently proposed to reissue the existing NWPs authorizing the discharge of dredged or fill material into waters of the United States for specified projects. (See http://www.usace.army.mil/CECW/Documents/cecwo/reg/nwp/NWP_prop_fr_16Feb2011.pdf) For projects that fall within their scope, NWPs can take the place of individual permits under section 404 of the Clean Water Act and have the potential to streamline one part of the approval process as obtaining permit coverage through an NWP is generally quicker and less expensive than obtaining an individual 404 permit. Through its proposal, the Corps is planning to reissue 48 of the 49 existing NWPs with some modifications and to issue two new NWPs. The Corps is proposing to let one NWP expire—NWP 47 for Pipeline Safety Program Designated Time Sensitive Inspections and Repairs—and not reissue it. Continue reading →

On December 20, 2010, five years after the United States Supreme Court struggled with resolving the scope of Clean Water Act (“CWA”) jurisdiction in Rapanos v. United States (2006) 126 S.Ct. 2208, the EPA and the US Army Corps of Engineers have sent a draft December 2010 “Clean Water Protection Guidance” (“2010 Draft Guidance”) to the White House Office of Management and Budget (“OMB”) that would reportedly “clarify Clean Water Act responsibilities.” The 2010 Draft Guidance represents a significant departure from the Existing Guidance as it relies more explicitly on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction in the Rapanos decision. Continue reading →