Join Sidley for the Environmental Law Institute’s People Places Planet Podcast series, “The Enforcement Angle.” Through this series, Sidley partners discuss state and federal enforcement of environmental laws and regulations with senior enforcement officials and thought leaders on environmental enforcement in the United States and globally. The featured guests offer their insights into the challenging environmental issues facing corporations today.
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.
On March 19, 2023, in Texas et al. v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the Environmental Protection Agency (EPA) and Army Corps of Engineers Waters of the United States (WOTUS) Rule in the states of Idaho and Texas. The injunction went into effect just one day before the WOTUS Rule was set to become final. Texas represents the latest in the multidecade saga of seeking to define the term “waters of the United States” in the context of the Clean Water Act (CWA). Moreover, Texas is just one hurdle EPA’s new WOTUS Rule faces, with a pending Supreme Court case (Sackett v. EPA) and potential congressional action to block the rule both on the horizon.
The Biden administration has voiced strong support for commercial nuclear energy as an essential element of the President’s goal of achieving “clean” electricity by 2035 and net-zero emissions by 2050. Last week, the U.S. Nuclear Regulatory Commission (NRC or the Agency), announced a regulatory milestone that inches the advanced nuclear technology sector closer to commercialization of small modular reactor (SMR) technology.
On March 14, 2023, the U.S. Environmental Protection Agency (EPA) proposed its long-anticipated National Primary Drinking Water Regulation (NPDWR) to limit six common types of PFAS in drinking water. This is the first time EPA has sought to establish legally enforceable national PFAS contamination levels for drinking water. This step represents the latest action under the Biden administration’s multistep plan to limit PFAS levels in the United States, building upon EPA’s October 2021 PFAS Strategic Roadmap and its pending proposal to designate certain PFAS as hazardous substances under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act.
On Wednesday, March 8, the U.S. Environmental Protection Agency (EPA) proposed more stringent effluent limitations guidelines and standards for coal-fired power plants, which it estimates will cost $200 million annually while reducing pollutant discharges by approximately 584 million pounds per year. The proposed guidelines and standards update those published in 2015 and 2020 and focus on limiting the migration of toxic metals such as selenium, mercury, and arsenic to drinking water, recreational water, and aquatic life from the following types of wastewaters generated by coal-fired power plants: flue gas desulfurization wastewater, bottom ash transport water, and combustion residual leachate. The proposal includes additional standards for legacy wastewaters previously discharged to surface impoundments.
On March 2, 2023, in a 3–1 decision, the U.S. Federal Energy Regulatory Commission (FERC) rejected, without prejudice, Southwest Power Pool (SPP) proposal to adopt an Effective Load Carrying Capacity (ELCC) capacity accreditation methodology for wind and solar resources (Rehearing Decision). Commissioner Allison Clements issued a concurring statement, and Commissioner James Danly issued a dissenting statement. The Rehearing Decision reverses FERC’s August 2022 decision accepting, subject to conditions, SPP’s proposal to accredit wind and solar resources based on historical performance using an ELCC methodology (August Decision).
This week saw two key milestones for nuclear power, signaling advancement in an industry viewed as critical to securing reliable and carbon-free baseload power for the future. On Monday, March 6, Georgia Power announced that the Vogtle Unit 3 pressurized water reactor achieved initial criticality, meaning nuclear fission was self-sustaining and able to generate the heat necessary to deliver electricity to the grid. The unit is slated to come online in the coming months and is approved to operate under a 40-year Nuclear Regulatory Commission Combined Operating License.
On March 2, 2023, the U.S. Environmental Protection Agency (EPA or Agency) announced several enforcement actions that support reducing the use of hydrofluorocarbons (HFCs). These actions include the following:
On March 2, 2023, the Biden administration unveiled a new National Cybersecurity Strategy that includes various initiatives to protect U.S. energy infrastructure from attacks. The White House strategy comes on the heels of several high-profile attacks on U.S. substations and at a time when federal regulators have placed increased focus on the security of the U.S. energy grid.