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Environmental and Energy Brief
Perspectives for the Environmental and Energy Community
Agencies Rescind Trump-Era Definition of “Habitat” Under Endangered Species Act
On Friday, June 24, the U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a final rule rescinding the agencies’ regulatory definition of “habitat” previously promulgated by the Trump administration on December 16, 2020, for use in determining a “critical habitat” under the Endangered Species Act (Act). Under this prior definition, “habitat” included “the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.” (more…)
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Peter Whitfield
Washington, D.C.
pwhitfield@sidley.com
Aaron L. Flyer
Brooklyn Hildebrandt
Los Angeles
bhildebrandt@sidley.com
Electric Reliability Council of Texas’ Independent Market Monitor: Conservative Operating Posture Could Cost Consumers $1.5B
On June 22, 2022, the Electric Reliability Council of Texas (ERCOT) Independent Market Monitor director, Carrie Bivens, testified before the Texas House State Affairs Committee on the ERCOT market design, reporting that ERCOT’s “conservative” operating posture since Winter Storm Uri could add $1.5 billion to consumer bills in 2022. (more…)
Grace Dickson Gerbas
Dallas
gdicksongerbas@sidley.com
Emily P. Mallen
D.C. Circuit Finds That California Agency Did Not Waive Clean Water Act Authority for Hydroelectric Power Plan Permitting
On Friday, June 17, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) upheld a decision by the Federal Energy Regulatory Commission (FERC) in Turlock Irrigation District et al. v. Federal Energy Regulatory Commission et al. ruling that the California State Water Resources Control Board (Water Board) did not waive its authority to issue permits in connection with FERC’s licensing of the Don Pedro and La Grange hydroelectric plants (the Projects) in central California under Section 401 of the Clean Water Act. (more…)
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
Aaron L. Flyer
FERC’s June Open Meeting Dominated by Electric Transmission Proposed Rulemakings
NOPR to Reform Generator Interconnection Procedures and Agreements
On June 16, 2022, the Federal Energy Regulatory Commission (FERC) took another step to ease access to the transmission grid with a Notice of Proposed Rulemaking (NOPR) on Improvements to Generator Interconnection Procedures and Agreements. The NOPR seeks to reform FERC’s current procedures and agreements, and in doing so (1) address the significant interconnection queue backlogs, (2) provide greater certainty, and (3) prevent undue discrimination against new generation technologies. (more…)
Keturah A. Brown
Washington, D.C.
kbrown@sidley.com
Emily P. Mallen
FERC Jurisdiction Upheld in Puerto Rican Liquified Natural Gas Terminal Proceeding, New Fortress Energy Inc. v. FERC
On June 14, 2022, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Federal Energy Regulatory Commission (FERC) finding of jurisdiction over New Fortress Energy LLC’s (New Fortress) liquified natural gas (LNG) import terminal facility in San Juan, Puerto Rico, in New Fortress Energy Inc. v. FERC. (more…)
Keturah A. Brown
Washington, D.C.
kbrown@sidley.com
Emily P. Mallen
U.S. Environmental Protection Agency Proposes Updates to State Certification Process Under Clean Water Act Section 401
A recently proposed rule by the U.S. Environmental Protection Agency (EPA) seeks to expand the powers of states and tribes in approving or denying projects that require Clean Water Act (CWA) authorization. On June 9, 2022, EPA published for public comment its proposed Clean Water Act Section 401 Water Quality Certification Improvement Rule, which would significantly alter a Trump-era rule regarding the grounds on which state and tribal certifying agencies may impose conditions on, or outright block, projects that receive federal authorization. (more…)
Caleb J. Bowers
Los Angeles
cbowers@sidley.com
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
EPA Defends Hydrofluorocarbons Cap-and-Trade Rule
In a June 2, 2022, brief addressing the U.S. Court of Appeals for the D.C. Circuit’s review of the final rule regarding the hydrofluorocarbons (HFCs) cap-and-trade program (Final Rule or Framework Rule), the Environmental Protection Agency (EPA or Agency) argued that the challenged measures of the Final Rule are within its statutory authority under the American Innovation and Manufacturing Act of 2020 (AIM or the Act). The Framework Rule is a part of the Agency’s efforts to achieve AIM’s objective of reducing manufacturing and consumption of 18 saturated HFC chemicals by 85% by 2036. (more…)
Jagdeep Singh
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
California Appeals Court Rules That State Endangered Species Act Protects All Invertebrates
On May 31, 2022, the California State Court of Appeals for the Third Appellate District ruled that the California Endangered Species Act (State ESA or the Act) protects all invertebrates. Expanding on the 2007 decision in California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1552, the court opined that the Act bestows the California Fish & Game Commission (Commission) with the authority to protect not just aquatic invertebrates but any invertebrates as endangered or threatened species. (more…)
Jagdeep Singh
Samuel B. Boxerman
Washington, D.C.
sboxerman@sidley.com
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Samuel B. Boxerman
sboxerman@sidley.com
Keturah A. Brown
keturah.brown@sidley.com
Grace Dickson Gerbas
gdicksongerbas@sidley.com
Terence T. Healey
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Kenneth W. Irvin
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Christopher J. Polito
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Casey Khan
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Michael L. Lisak
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Brittany A. Bolen
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Brooklyn Hildebrandt
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Nicole E. Noëlliste
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Hannah Posen
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Jack Raffetto
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