On Friday, February 24, 2023, a Nevada federal judge issued an order in Bartell Ranch LLC et al. v. McCullough et al., rejecting emergency requests for injunction by Plaintiffs, among which are Native American Tribes, various environmental groups, and a rancher to block construction of the Thacker Pass lithium mine, pending their current appeal to the 9th Circuit.[1] The Plaintiffs maintain that the Bureau of Land Management failed to acknowledge concerns about the impacts of the mine and that the permits were illegally granted. The District Court ruled in favor of the Defendants, the Bureau of Land Management and Lithium Nevada Corp., with the Court only requiring a re-approval of permits covering 1,300 of the approximately 6,000-acre mineable area. The Plaintiffs sought an injunction while their appeal to the 9th Circuit is ongoing. However, the Court ruled in favor of the Defendants, ruling that “the requisite strong showing of a likelihood of success on the merits of their appeal” had not been met, opening the door for the project to proceed.…

The siting of renewable energy infrastructure remains a contentious issue in some communities. Throughout the United States — both on the coasts and in the Midwest — new renewable energy development pits unlikely advocates against unlikely opposition. That said, more and more State governments that are looking to grow their renewable energy industries and meet climate goals are implementing legislative solutions to these renewable energy siting issues.…

On February 22, 2023, the U.S. Food and Drug Administration (“FDA” or “Agency”) released draft guidance on labeling of plant-based milk alternatives (“PDMA”). This draft guidance is meant to clarify the FDA’s current view on the naming of plant-based foods that are marketed and sold as alternatives for milk in accordance with Sections 403(a)(1) and 403(i)(1) of the Federal Food, Drug, and Cosmetic Act. The draft guidance also provides recommendations on the use of voluntary nutrient statements comparing plant-based milk to cow’s milk.…

On February 14, 2023, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Energy Regulatory Commission’s (FERC) method for calculating the size of a small power production qualifying facility (QF) under PURPA as the net output or “send-out” capacity of the project. See Solar Energy Industries Association v. FERC, No. 21-1126 (D.C. Cir. 2023). To be a small power production QF under PURPA, a facility must use a qualified renewable resource, such as biomass, waste, wind, solar, or geothermal resources, to produce energy, and have a power production capacity that does not exceed 80 megawatts when considered with other facilities at the same site. FERC’s method of calculating the maximum size limitation was contested by Edison Electric Institute and Northwestern Energy (collectively, Utilities).…

2022 saw a flurry of renewable natural gas (RNG)-related deals, including in anticipation of (and then in response to) the historic Inflation Reduction Act (IRA). Sustainability mandates and the growing maturity of RNG-related credit markets, as well as the IRA’s expansion of investment and production tax credits, drove increased transactions and historic valuations.…

After nearly a decade, the Texas Attorney General and the New Mexico Attorney General announced in October 2022 that Texas, New Mexico, and Colorado had reached an agreement over the distribution of water from the Rio Grande; however, the details of the agreement, which is in the form of a proposed Consent Decree, were not known until January 23, 2023. Though the Department of Justice opposes it, the proposed Consent Decree will likely be approved by the appointed Special Master and ultimately forwarded to the U.S. Supreme Court for approval.…

On January 27, 2023, the U.S. Department of Energy (DOE) announced its intent to invest up to $47 million in funding for clean hydrogen research, development, and demonstration (RD&D) as part of its “Hydrogen Shot” – a program intended to reduce the cost of clean hydrogen to $1 per kilogram in the coming decade by reducing costs and improving the performance of hydrogen fuel cells. Hydrogen Shot is also part of the Biden administration’s strategy to decarbonize the electric grid entirely by 2035 and to reach net-zero emissions by 2050.…

On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.…

The Inflation Reduction Act of 2022 (IRA) builds upon recent incentives for investment in hydrogen by encouraging producers and end users of clean hydrogen to continue developing clean hydrogen infrastructure. This article provides an overview of the incentives and how they may be accessed.…

The Bureau of Land Management (“BLM”) recently circulated a Proposed Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation (“2022 Proposal”). This iteration, as BLM acknowledges, is a revamp of its fraught 2016 attempt to issue a similar rule ostensibly aimed at reducing natural gas waste on federal and Indian leases (“2016 Rule”). The 2016 Rule was ultimately struck down two years ago as unlawful. To the Wyoming federal court, the 2016 Rule sought to regulate air emissions—a role reserved for the Environmental Protection Agency (“EPA”) and the states—rather than prevent the waste of resources through flaring and other means. Undeterred, the Biden Administration believes it has learned from and theoretically fixed the flaws in the 2016 Rule through the 2022 Proposal. The 2022 Proposal claims to focus on reducing operator costs and generating taxpayer revenue. This is a shift from the 2016 Rule, which relied on the benefits from reduced carbon emissions to justify its issuance. Nevertheless, the question to many stakeholders remains: does the 2022 Proposal still exceed BLM’s authority, or has the agency done enough to win a future legal challenge?…