Real Estate & Land Use

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The Texas legislature recently passed House Bill 2845 (“HB 2845”) imposing specific requirements on wind energy leases and wind developers’ decommissioning obligations for wind energy projects. While wind leases typically impose obligations on project companies relating to the removal of wind projects, HB 2845 mandates that wind leases must include specific provisions describing such obligations.

D.C. Circuit Upholds USEPA Decision to Not Require Financial Assurance Under CERCLA for Hardrock Mining

We have previously blogged (in June 2019 and 2017) on a proposed rule released during the final days of the Obama Administration which required hardrock mines to provide financial assurance demonstrating they are able to fund the costs associated with the future cleanup of the mines under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal statute designed to address releases of hazardous substances and the cleanup of hazardous waste sites nationwide. In December 2017, the USEPA stated its intention not to issue the final rule, finding that there was no need for any CERCLA financial assurance mechanism for operating hardrock mines based on existing federal and state programs as well as modern mining practices. Several environmental organizations filed suit in the U.S. Court of Appeals for the D.C. Circuit, challenging the USEPA’s decision not to issue the rule.

The Trump administration announced in December 2018 its proposed replacement rule defining “waters of the United States.” Under the proposed rule, the number of wetlands that fall outside of federal jurisdiction is expected to increase.

Phillip Bower and Megan McLean weigh in on what this means for state regulation of non-federal wetlands in the recent…

Per- and polyfluoroalkyl substances (“PFAS”) are synthetic chemicals used in a number of industrial processes and in the manufacturing of certain consumer goods because of their fire resistance and because they repel oil, stains, grease, and water. There are approximately 3,500 different compounds under the umbrella of PFAS. Some of these were used in firefighting foam, which in some places, including near airports, were spread over the ground to prevent forest fires. The most well-known versions, and considered to be of greatest concern, are long chain PFAS, perfluoroctanoic acid (“PFOA”) and perfluoroctane sulfonate (“PFOS”).

On August 21, 2018, the Environmental Protection Agency (EPA) released a prepublication copy of its proposed Affordable Clean Energy (ACE) rule. If adopted, the rule would (1) establish emission guidelines for greenhouse gas emissions from existing electric utility generating units (EGUs); (2) revise the regulations governing how states implement the emission guidelines; and (3) revise the New Source Review (NSR) program to allow modification to existing EGUs without triggering permitting requirements.

The Clean Power Plan regulations adopted by the Obama administration would have limited GHG emissions by directing states to reduce emissions by applying a combination of three “building blocks” as the best system of emission reduction (BSER), which consisted of:

1)    Improving heat rate at affected coal-fired steam generating units;

2)    Substituting increased generation from lower-emitting natural gas combined cycle units for decreased generation from higher-emitting affected steam generating units; and

3)    Substituting increased generation from new zero-emitting renewable energy generating capacity for decreased generation from affected fossil fuel-fired generating units.

U.S. Environmental Protection Agency’s January 25 change to its “once in always in” policy will allow facilities that have historically been regulated as “major sources” of hazardous air pollutants to be reclassified as “area” sources if they have reduced their potential to emit to below major source thresholds. This is important because companies that are…