On July 19, 2022, the U.S. Court of Appeals for the Fifth Circuit held that debtors in bankruptcy may reject regulated energy contracts, vacating two Federal Energy Regulatory Commission (FERC) orders to the contrary, in Gulfport Energy Corp. v. FERC. The question turned on how a party’s ability to reject executory contracts in bankruptcy interacts with FERC’s ability to determine whether a party can abrogate or modify contracts that constitute filed rates under a doctrine referred to as Mobile-Sierra. The court found that FERC cannot use its Natural Gas Act authority over contract abrogation and modification to countermand a debtor’s bankruptcy-law rights or the bankruptcy court’s powers.
On July 18, 2022, the U.S. Environmental Protection Agency (EPA) issued a final rule updating the Toxics Release Inventory (TRI) to identify five per- and polyfluoroalkyl substances (PFAS) added to the TRI pursuant to the framework set by the National Defense Authorization Act for Fiscal Year 2020 (NDAA). (more…)
On July 8, 2022, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) rejected a challenge to the listing of a groundwater contamination plume on the National Priorities List (NPL). The decision in Daikin Applied Americas, Inc. v. EPA reaffirms the difficulty that attends challenging NPL listings as well as the wide latitude Congress granted the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to define the scope of Superfund sites during the listing process. (more…)
In the second quarter of 2022, the Biden administration took steps to implement the President’s whole-of-government environmental justice (EJ) strategy. Specifically, the U.S. Department of Justice (DOJ or the Department), U.S. Environmental Protection Agency (EPA or the Agency), and U.S. Department of Health & Human Services (DHHS) each announced initiatives to address EJ in a variety of agency functions. Additionally, the White House provided an update on funding available to disadvantaged communities. (more…)
On Thursday, June 30, the U.S. Supreme Court released its decision in West Virginia v. EPA, holding that the Environmental Protection Agency (EPA) exceeded its statutory authority in adopting the Obama-era Clean Power Plan (CPP). The 6–3 decision may limit EPA’s ability to address greenhouse gas (GHG) emissions comprehensively. A summary of the Court’s reasoning is set out below, followed by four “key takeaways.” (more…)