Pittsburgh Business Times
Named to this list, Molly Meacham became co-chair of Babst Calland’s Litigation Group two years ago and recently was appointed to the firm’s board and is a member of its Emergency Response Committee. She also works in Babst’s Emerging Technologies Group, where she helps to bridge the litigation and mobility/transport practices. Her practice has two primary aspects: representing companies in commercial litigation and employment litigation matters, and serving as outside counsel providing companies with human resources advice and counseling.
For the full article, click here.
Renewables Law Blog
(By Ben Clapp)
Developers of renewables projects are once again facing regulatory uncertainty regarding the scope of the Migratory Bird Treaty Act (“MBTA”) as a result of a proposed rule issued on May 7 by the U.S. Fish and Wildlife Service (“USFWS”). The proposed rule, if finalized as issued, would revoke a rule issued in the last days of the Trump administration stipulating that deaths of migratory birds occurring incidental to lawful activities (i.e., incidental take) are not prohibited under the MBTA.
The proposed rule represents the latest development in a long-running debate. At issue is whether the MBTA, a law passed in 1918 that was originally intended to prevent the extinction of migratory bird species due to commercial trade and hunting practices, prohibits the incidental taking of protected birds as a result of activities that are otherwise lawful, such as the operation of wind turbines or the clearing of land for a solar project, or whether the law prohibits only the intentional take (i.e., purposeful killing) of protected species. The issue has resulted in a split among U.S. Circuit Courts of Appeals, as well as completely opposite legal interpretations issued by two Solicitors of the Department of Interior within the span of one year in 2017.
By revoking the prior rule, the USFWS would revert to interpreting the MBTA to prohibit incidental take of birds protected under the act, and to employing agency discretion in determining whether an incidental take of such birds warrants an enforcement action. The proposed rule highlights the need for renewable project developers to implement best practices for avoiding the unintended take of protected migratory birds as a means of qualifying for agency enforcement discretion and thus avoiding fines for noncompliance. For wind energy projects, this can largely be accomplished through complying with the USFWS’s Land-Based Wind Energy Guidelines, although there is no guarantee that such compliance will preclude an enforcement action. There are no solar-specific guidelines currently in place. While the risk posed to migratory birds from solar projects is less than that for wind projects, solar developers should nonetheless implement best practices for reducing impacts to birds, including the general Nationwide Standard Conservation Measures for project development.
Tags: Migratory Bird Treaty Act, migratory birds, renewable energy projects, solar, wind
Smart Business
(by Sue Ostrowski featuring Carl Ronald)
If you’re considering selling your innovative product or commercializing your novel processes in another country, protecting your innovations with a patent in that country may be key to your success. But trying to navigate the process alone can prove difficult.
“It’s surprising how complicated it can be, and there are a lot of places to get tripped up,” says Carl Ronald, shareholder at Babst Calland. “While you can try to do it on your own, hiring a patent attorney can make the process much smoother, ensuring you are including all relevant information and complying with all relevant deadlines to protect your invention in the most cost-effective way possible.”
Smart Business spoke with Ronald about when you might need international protection and how a patent attorney can help you navigate the complex process.
When should a company consider applying for a patent outside the U.S.?
A U.S. patent only provides a protectable interest here in the U.S.; you can’t stop someone from using what your patent teaches to compete with you in other countries unless you’ve timely filed in those countries, as well. If you have an international customer base that is purchasing products or services that, in the future, may be produced with, employ, or contain your patented process or device, you should seek protection, at a bare minimum, in those countries where your anticipated market is largest.
Keep in mind the importance of secrecy before filing your application. In the U.S., you have one year to file a patent application covering your invention after you disclose it publicly. Other nations are not so lenient and, in many countries, any disclosure of your invention to someone who does not have an obligation of confidentiality will destroy novelty and likely preclude you from ever obtaining a patent in that country.
What is the process for filing in a foreign country?
In general, the first step for most U.S.-based applicants is to file either a provisional or a nonprovisional patent application (your “priority filing”) in the USPTO. Once the application has been reviewed for national security issues that would prohibit you from filing outside the country, a foreign filing license grants permission to file in other countries.
If you want to practice your invention in just one or two other countries, your patent attorney can file directly with those countries, so long as the foreign filing license has been granted and it’s less than a year since your original U.S. filing.
However, if you’re seeking patents in more than one or two countries, it’s likely more cost-effective to file an international application through the Patent Cooperation Treaty (PCT). The PCT provides a unified procedure for filing a single patent application that will preserve your ability to ultimately seek protection for your invention with each of its participating members, which includes nearly all industrialized countries.
Deadlines are important; you must file a PCT application within one year of the filing date of your priority filing. After your PCT is filed, you have up to an additional 18 months in most countries before you are required to file your application directly in each country where you’d like to have protection.
How can a business determine if it should apply for a patent outside the U.S.?
Every business has competition in the marketplace and seeks an edge — something to differentiate it from its competitors. One of the ways to compete is to maximize the value of its products and processes and to ensure others are not unfairly competing with it.
If a particular innovation satisfies a need in the marketplace and obtaining a patent will provide a competitive advantage, patent protection should be strongly considered for any country where the innovation is sold.
For the full article, click here.
For the PDF, click here.
The Legal Intelligencer
(by Lisa Bruderly)
State and federal water law permitting can pose significant obstacles for energy infrastructure construction projects that impact waterbodies (e.g., wells pads, access roads, natural gas/oil pipelines). The following five new and proposed regulatory changes are likely to significantly affect project design and construction in Pennsylvania.
- Waters of the United States (WOTUS)
The definition of WOTUS identifies which waters are federally-regulated under the Clean Water Act (CWA), and, therefore, determines when a federal permit is required for projects that involve dredging or filling of a waterbody (i.e., a Section 404 permit). The current WOTUS definition was promulgated in 2020 under the Trump administration. It has been criticized by environmental groups as federally regulating fewer types of waterbodies than the WOTUS definition promulgated under the Obama administration. For example, ephemeral streams are not regulated under the current WOTUS definition.
President Joseph R. Biden Jr. has asked the U.S. Army Corps of Engineers (the Corps) and the U. S. Environmental Protection Agency (EPA) to consider revising or rescinding the current definition. He has also asked courts to stay judicial challenges to the current WOTUS definition while his administration reconsiders the issue.
The Biden administration is expected to propose its own definition of WOTUS, which will, undoubtedly, be more expansive than the current definition and require more projects to obtain federal CWA permitting. Among other things, the Biden administration’s definition of WOTUS is likely to regulate waters (including ephemeral streams) that are considered to have a “significant nexus” with traditionally navigable waters. This definitional change is expected to extend the time and increase cost of permitting for many energy construction projects.
- Nationwide Permits (NWPs)
In Pennsylvania, qualifying projects impacting federally regulated waters may be eligible for one of two types of Section 404 general permits (i.e. NWPs or the Pennsylvania State Programmatic General Permit (PASPGP)), in lieu of the more costly, lengthy and complicated process of obtaining an individual Section 404 permit.
In January, the Corps and EPA revised and reissued 12 existing NWPs and created four new NWPs; all of which were effective on March 15, 2021. The revised NWPs largely relate to energy industry activities, including the revision of NWP12 relating to oil and natural gas pipeline activities.
Pennsylvania subsequently finalized new/revised regional conditions to the NWPs. Many of these regional conditions apply to all NWPs (i.e., regional general conditions); however, other regional conditions apply to a specific NWP or Corps District. In some instances, these new conditions change the eligibility criteria for a specific NWP or change the information required to be submitted as part of a pre-construction notification to the Corps. When planning a project, it is crucial to identify and comply with the new regional general conditions, as well as conditions applicable to the specific NWP and/or Corps District to avoid project revisions and/or the need to switch from a NWP to an individual permit.
As a further consideration, projects intending to use a NWP should evaluate whether the proposed project is still eligible for coverage, either through grandfathering of the prior NWP or coverage under the revised/new NWP. In some instances, a project may no longer be eligible for a NWP, and the project may need to be redesigned or permitted under the lengthier individual permitting process.
Lastly, while the use of many NWPs, including NWP12, has historically been suspended in Pennsylvania, the new/revised regional general conditions allow the use of nine of the new/reissued NWPs in “areas within Pittsburgh District’s area of responsibility in the Commonwealth of Pennsylvania.” Previously, the PASPGP (discussed below) was the only general permit available for many activities. This exception to the NWP suspensions offers potentially increased flexibility to use NWPs in the western part of Pennsylvania, subject to the discretion of the Pittsburgh District.
- PASPGP-6
PASPGP-5 expires on June 30, 2021. The Corps has not yet finalized PASPGP-6, which was proposed in September 2020. PASPGP-6, as proposed, would reduce the general permit’s eligibility threshold from one acre of temporary and/or permanent impact to 0.5 acre of permanent impact and unlimited acreage of temporary impact. In addition, the reporting threshold, triggering the need for Corps review, would be based on impacts from the overall project (i.e., all regulated activities), rather than from each crossing single and complete project (i.e., crossing of a single water). Future projects that are anticipating PASPGP-6 authorization should evaluate applicability with these proposed thresholds (if finalized as proposed).
- Section 401 Conditional State Water Quality Certification for NWPs
In December 2020, PADEP conditionally granted 401 Water Quality Certification (WQC) for the new/revised NWPs. The conditions of the 401 WQC are incorporated into the NWP regional conditions, as summarized below:
- All necessary environmental permits or approvals must be obtained from PADEP and all necessary environmental assessments must be submitted to PADEP before beginning any activity authorized by the Corps under a NWP.
- Fill material may not contain any waste as defined in the Solid Waste Management Act.
- Applicants and projects eligible for these NWPs must obtain all necessary state permits and/ or approvals to ensure that the project meets Pennsylvania’s applicable water quality standards, including any project-specific WQC.
Project conditions should be reviewed to determine whether they conform with the 401 WQC. If not, the project could require an individual 401 WQC or waiver.
- Chapter 105 – In December 2020, PADEP proposed its first substantive revisions to its stream and wetland regulations (i.e., 25 Pa. Code Chapter 105) since 1991. Chapter 105 regulates obstructions and encroachments of waters of the Commonwealth, similar to the Corps’ Section 404 permitting program under the CWA.
Approximately 20 definitions would be added or amended by the proposed rulemaking. Many of the proposed amendments would codify existing application requirements. However, other amendments introduce new or expanded requirements, which could introduce new hurdles for applicants. Many of these revisions relate to performing an alternatives analysis and cumulative impact analyses to demonstrate that a project’s impacts to regulated waters have been minimized or avoided. If finalized as proposed, the rulemaking will likely increase the cost and effort required to obtain a Chapter 105 permit.
Conclusion
As discussed above, 2021 already has, and will continue to, present challenges regarding the permitting of projects that disturb regulated waters, including wetlands, in Pennsylvania. Energy project developers should stay abreast of these regulatory changes to anticipate new requirements and avoid unnecessary delays.
For the full article, click here.
Reprinted with permission from the May 20, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.
Renewables Law Blog
(By Blaine Lucas)
With the development of large-scale renewable energy projects, municipal land use officials and private developers face the dilemma of how to classify and address such uses when zoning ordinances do not expressly mention them. Such omissions may be intentional, or, more often, may simply be the result of failures to update their ordinances to account for the changing energy production market.
A recent example of how these issues play out was a decision by the Lower Mount Bethel Township, Northampton County Zoning Hearing Board. There, Glidepath Ventures, LLC d/b/a Prospect 14, desired to construct a 61,000 solar panel facility to generate electricity for public consumption within the Township. The developer had targeted a 130-acre property located largely within the Township’s Agricultural District, and partially within its Conservation District. The Township zoning ordinance does not permit solar panel facilities in any district but does permit “any other use not otherwise listed in any zoning district” as a conditional use within the Township’s Industrial District. Although the developer argued that there was no suitable undeveloped property within the Industrial District, the Township’s expert testified that there was a suitable site within that zone, although the undeveloped space was limited.
At bifurcated hearings spanning several months, the Developer initially sought a use variance to allow the solar facility in the Agricultural and Conservation Districts or, in the alternative, challenged the validity of the Zoning Ordinance, alleging that it was legally defective by excluding the proposed use. After finding that the developer had failed to establish the requisite unnecessary hardship for the grant of a use variance, the Board considered whether the use was either de jure or de facto exclusionary by either expressly or in practice prohibiting the legitimate solar facility use. Ultimately, the Board held the ordinance was not exclusionary because it did not expressly prohibit solar facilities, and the proposed use could be permitted as a conditional use in the Industrial District because it was not otherwise listed in any zoning district.
The Board issued its written decision on April 28. As of this date, no appeal has been filed.
The decision in Glidepath Ventures highlights the need for municipalities and developers alike to consider how they classify and define renewable energy uses. By failing to provide for a legitimate use, the Township was placed in a precarious situation, and if it had not included a provision permitting all other uses within the Industrial District, the ordinance may have been found to be de facto exclusionary and therefore invalid. In addition, the decision is indicative of the disconnect between the type of use and land considered by developers to be functional for larger renewable energy products, and what zones municipalities believe to be suitable from a zoning context. How municipalities classify and define renewable energy uses will likely continue to evolve as renewable energy development increases and cases such as Glidepath Ventures become more prevalent.
Tags: renewable energy projects, use variance, zoning ordinances
The PIOGA Press
(by Gary Steinbauer and Gina Falaschi)
On April 28, 2021, the U.S. Senate passed a joint resolution, known as S.J. Res. 14, retroactively revoking a Trump administration rule revising Obama-era Clean Air Act New Source Performance Standards for the Crude Oil and Natural Gas Industry at 40 C.F.R. Part 60, Subparts OOOO and OOOOa (NSPS) that were initially promulgated in 2012 and 2016. The joint resolution, if enacted into law, would reinstate Obama administration rules regulating the methane emissions from the oil and natural gas industrial sector, including the production, processing, transmission and storage segments.
The Trump administration’s Policy Amendments rule
The joint resolution takes aims at a specific Trump administration rule published in the Federal Register on September 14, 2020. Referred to as the “Policy Amendments,” the rule resulted in four key changes to these NSPS, which were promulgated in 2012 and 2016.
First, the Policy Amendments removed the transmission and storage segment, including transmission compressor stations, pneumatic controllers and underground storage vessels. In removing the transmission and storage segments from regulation under the NSPS, the U.S. Environmental Protection Agency (EPA) found that the segments were improperly regulated because the statutory-mandated finding that sources contribute significantly to air pollution was not made when the segments were added to the industrial sector and the NSPS in 2012 and 2016.
Second, the Policy Amendments rescinded the methane emission requirements for the production and processing segments of the sector, which include various emission sources at well sites, gathering and boosting compressor stations, and natural gas processing plants.
Third, by removing the methane limits on the production and processing segments, the Policy Amendments eliminated the Clean Air Act (CAA) requirement to regulate methane emissions from existing sources from within these segments.
Fourth, as an alternative basis for rescinding the limits on methane emissions, the Policy Amendments concluded that the 2016 rule adding methane limits was the product of an insufficient finding that did not satisfy CAA standards. While the Policy Amendments rule resulted in surgical deletions and revisions to the NSPS, it was based upon the Trump administration’s views and interpretations regarding the scope of the CAA’s NSPS provisions and how they are to be applied to previously unregulated sources and air pollutants.
Notably, the joint resolution left a companion rule promulgated by the Trump Administration known as the “Technical Amendments” untouched.
Congressional Review Act-based revocation
To revoke the Policy Amendments rule, the Senate invoked its authority under the Congressional Review Act (CRA). The CRA grants Congress the authority to overturn a federal regulation in its entirety by simple majority votes within specified time periods after the rule is promulgated. Although the CRA is not limited to use in presidential administration changes, it typically is used after such a change as an oversight mechanism for so-called “midnight rules.”
The most potent aspect of a CRA resolution disapproving a federal regulation is that the federal agency may not reissue the rule in “substantially the same form” or issue a “new rule that is substantially the same,” “unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” The CRA does not define “substantially the same” and is silent on who is responsible for making a determination on whether a new rule is “substantially the same.” For amendments to existing rules, like the Policy Amendments rule, a CRA joint resolution revokes the amendments and leaves the previously existing rule in place.
S.J. Res. 14 passed by a vote of 52-42, with Republican Senators Susan Collins (Maine), Lindsay Graham (South Carolina), and Rob Portman (Ohio) joining Democratic Senators in approving the resolution. Several Republican Senators, including Patrick Toomey (Pennsylvania), did not vote on the joint resolution. The day before the Senate’s vote, the Biden administration urged the Senate to invoke its CRA authority stating that “the oil and gas sector is the largest industrial source of methane emissions” and that “addressing methane pollution from this and other sectors is an urgent and essential step” to “effectively mitigate climate change.”
Unresolved questions about CAA regulation of methane emissions and compliance
Although a CRA revocation of the Policy Amendments is not yet final, it likely is only a matter of time before a Democratically controlled House of Representatives votes to pass the joint resolution and President Biden signs the resolution into law. Legally, a CRA-disapproved rule is treated “as though such rule had never taken effect.” As such, upstream and midstream operators would be well-advised to revisit the 2012 and 2016 NSPS rules and evaluate compliance with their requirements. Practically, reinstituting the methane requirements of the 2016 NSPS should have very little impact on production and processing facilities currently subject to the 2016 NSPS, as the methane reductions in the 2016 NSPS rule were incidentally achieved through volatile organic compound (VOC) control requirements. Transmission and storage facilities, where but for the Policy Amendments the 2012 and 2016 NSPS currently would apply, should review and prepare to comply with the originally promulgated rules.
If finalized, a CRA-based revocation of the Policy Amendments rule will raise significant questions. Ideally, EPA would provide guidance to affected facilities, particularly for transmission and storage facilities constructed, modified or reconstructed sources after September 14, 2020, in reliance on the Trump administration’s rule concluding that the 2016 NSPS did not apply to such sources. In addition, EPA most likely will need to issue a Federal Register notice reinstating the 2012 and 2016 NSPS as originally promulgated. Affected facilities will want to look closely at any Federal Register notice issued by EPA, especially any effective date for reinstating the 2012 and 2016 NSPS.
Congressional revocation of the Policy Amendments rule may also revive currently stayed multi-party litigation over the 2012 and 2016 NSPS. It would also revive EPA’s obligation under section 111(d) of the CAA to regulate methane emissions from existing sources within the oil and natural gas source category. Beyond that, Congress’ likely repudiation of the Trump administration’s interpretations in the Policy Amendments rule may also have lasting impacts on the regulation of greenhouse gas emissions from the oil and natural gas and other industrial sectors regulated under section 111 of the CAA.
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Smart Business
(by Sue Ostrowski featuring Jim Curry and Ashleigh Krick)
To remain competitive, businesses should stay on top of evolving state and federal policies on renewable energy. These changes present both opportunities and challenges, according to James Curry, managing shareholder in Babst Calland’s Washington, D.C. office, and Ashleigh Krick, an associate at Babst Calland. Commercial and industrial power consumers may be able to obtain benefits from sourcing renewable power, both financially and to answer growing shareholder and lender scrutiny.
At the same time, the increasing level of renewables coming online presents challenges related to grid reliability, underscoring the continued relevance for other more stable sources of electricity.
Smart Business spoke with Curry and Krick about the increase in state-level carbon reduction targets, the challenges associated with increased use of renewable energy and the role of traditional generation sources to maintain reliability.
What is the current state of affairs for renewables?
In Pennsylvania, bipartisan legislation has been introduced to increase the state’s Alternative Energy Portfolio Standards (AEPS), enacted in 2004 with the goal of increasing the state’s share of power from renewables. The AEPS requires that electric distribution companies and electric generation suppliers supply 18 percent of their electricity from certain alternative energy sources, such as solar, hydropower, geothermal, waste coal and distributed generation. The proposed legislation would increase that requirement by 10 percent.
Although an early adopter of a renewable portfolio standard, neighboring states have jumped ahead of Pennsylvania in recent years. New Jersey and Maryland have set renewable energy targets of 50 percent by 2030, while New York has a goal of 70 percent. And, in April 2020, Virginia passed legislation requiring the state’s largest utility to provide 100 percent of its electricity from renewables by 2045.
Pennsylvania Gov. Tom Wolf recently committed state government to purchasing 50 percent of its electricity needs from solar energy, the largest commitment of its kind in the U.S. The project will involve seven new solar facilities totaling 191 megawatts around the state and is slated to begin operation in 2023.
What are the challenges with renewables?
Renewables such as solar and wind are intermittent resources and do not provide continuous output. As more renewables come online, it becomes more difficult for grid operators and utilities to ensure system reliability. As renewables grow, the additional renewables that must be added to maintain reliability dramatically increase, as does the cost.
In some areas, market participants have looked to utility-scale battery energy storage to fill part of this reliability need. While storage can be a complement to renewables and gas-fired generation, storage faces some of the same reliability issues. As states advance decarbonization targets, traditional, baseload electric generation sources will continue to play a vital role in reliability.
In addition, there is no one-size-fits-all approach for renewables projects. Timelines and success may depend on state, county and local permitting and other requirements. Land acquisition can be challenging and in many states, including Pennsylvania, local municipalities exert substantial control over project-related zoning and land use issues.
Despite the challenges, many utilities and businesses are pursuing renewables projects to meet state targets or mandates.
What does the future hold for renewables?
The cost of renewables is likely to continue to fall, and technologies will continue to improve. Battery electric storage and other storage technologies are expected to become more cost-competitive, with demand for electricity increasing significantly in the coming decades as trends toward the electrification of the transportation and industrial sectors continue.
These factors call for practical, common-sense solutions to our growing energy needs, environmental challenges and continued demand for a reliable grid. While state-level incentives and mandates have been a driving force behind renewables development, we anticipate new federal policies such as tax credits, carbon capture incentives and possibly a federal clean energy standard.
For the full article, click here.
For the PDF, click here.
The Legal Intelligencer
(by Anna Jewart and Blaine Lucas)
Dating as far back as 1735, when the commonwealth was a province controlled by the heirs of William Penn, Pennsylvania has recognized the importance of public roads and their role in preserving a landowner’s right to access his land. Since that time, it has become a foregone conclusion that the government, at all levels, will provide and maintain public roadways. However, because of the necessary impact on the rights of individual landowners, the creation of anything from a federal highway to a municipal alleyway involves complex legal considerations. While the legal implications involved in the creation of public roads through eminent domain or dedication are well known, the abandonment or “vacation” of public roads also has a significant impact on the property rights of individuals, governments and the public. Recently, the Commonwealth Court, in In Re Vacating of Old Route 322, No. 384 C.D. 2020 (Pa. Cmwlth. Mar. 3, 2021), considered what happens when adjacent landowners allege a public roadway has become so “useless, inconvenient or burdensome,” that the municipality is required to vacate it under the General Road Law, 36 P.S. Sections 1781-2293. Although the case is unreported and not precedential, it may be cited for persuasive value, and offers an opportunity to review of this understudied area of the law.
Local roads often are established by dedication, where a landowner offers land for public use, and the municipality accepts it on behalf of the public. Typically, when a municipality accepts a road dedication it holds that property in trust only for the use for which it was dedicated. This means the dedication of a public road does not invest the municipality with fee title to the land on which it rests but only the right to use, maintain, regulate and control that land as a road. The public then obtains a right of passage over the road, but the fee continues to be held by the owners of the land. When the public is no longer benefited by the use of the land as a public road, the municipality has the power, and sometimes an obligation, to vacate the road.
Municipalities are only authorized to open or vacate public roads by statute. For example, in Pennsylvania boroughs are authorized to vacate streets within their borders in accordance with the Borough Code, 8 Pa.C.S.A. Section 101 et seq., and second class townships in accordance with the Second Class Township Code, 53 P.S. Sections 65101. Both are also constrained and impacted by other statutes including the General Road Law. Generally, a municipality may vacate a road within its borders by ordinance following public notice, as well as personal notice to the owners of any property abutting the road. Most statutes provide affected property owners or other residents the opportunity to request a hearing or review of the ordinance which is then appealable to the Common Pleas Court. Furthermore, because landowners have an inalienable, compensable, right of access to their property which may be affected by the vacation of a public road, under the Eminent Domain Code, 26 Pa.C.S. Section 715, the affected property owners may recover damages for any injuries sustained by a violation of this right. This means that municipalities generally may not vacate a road where it is the sole means of access to a tract of land.
However, property owners are not always harmed by vacation of roads abutting their land. As noted above, when a public road is vacated, neither the municipality nor the public retains any right to the land. Rather, because the fee remained with the owners of the dedicated land, each abutting landowner generally will take title of its relevant portion up to the centerline of the street, even if the properties are deeded only to the edge of the right-of-way. Consequently, certain abutting landowners may desire that a roadway be vacated, and the law provides pathways for them to accomplish that goal. Returning to the examples above, the Borough Code, Section 1732, 8 Pa.C.S. Section 1732, and the Second Class Township Code, Section 2304, 53 P.S. Section 67304, permit landowners to petition the municipality to vacate a municipal road. Upon the denial of the petition or a failure to act upon it, the petitioners may present the petition to the Common Pleas Court pursuant to the General Road Law.
Under Section 18 of the General Road Law, 36 P.S. Section 1981, Common Pleas Courts have the authority, upon application by petition of abutting landowners, to vacate the whole or any part of any private or public road whenever it has become “useless, inconvenient or burdensome.” The petitioner only needs to prove that one of these conditions is present. In addition, these terms are not defined, and the courts have found their interpretation to be fluid and entirely fact dependent. Upon receipt of a petition, the court may appoint a board of viewers to hold hearings on the issue, whose findings are then appealable to the court.
In In re Old Route 322, individuals owning property abutting “Old Route 322” in Paint Township, Clarion County (township), petitioned the township to vacate the roadway. The township failed to act, and the landowners subsequently presented a petition to Clarion County Common Pleas Court. The court appointed a board of viewers (board), which held evidentiary hearings to determine whether the roadway met the requirements for vacation under the General Road Law. The board found that while the roadway had become overgrown with grass, weeds and other debris, and was not actively patrolled or maintained by the township, it remained valuable as it produced a certain amount of revenue in liquid fuel tax monies, provided a public and emergency access route to the nearby river, could possibly provide access to a public park in the future, and remained the only land access point to a parcel owned by a nonparty power company. Consequently, the board found that the petitioners had failed to prove that the road was useless, inconvenient or burdensome, and denied the petition.
Following the petitioners’ appeal, the Common Pleas Court adopted the board’s findings and conclusions. In the subsequent appeal to the Commonwealth Court, the petitioners alleged that the trial court erred by finding that the township had standing to assert the private property rights of the power company, and improperly considered certain evidence regarding the use and value of Old Route 322.
The Commonwealth Court began its analysis by stressing the importance of an individual landowner’s, as well as the public’s, ability to access one’s land by road, pointing out that roadway access to individual parcels had been required in Pennsylvania dating back to the early 1700s. It further noted that it was “without question” that a township has the authority to oppose vacation of a township road. The court explained that the township was not asserting the private property rights of the power company, but was instead identifying deficiencies in the petitioners’ argument by showing that they had not proven that the roadway was useless to the power company.
The Commonwealth Court concluded that the board properly relied upon the evidence presented by the township. It held that the liquid fuel tax money received by the township due to its ownership of the roadway was relevant, reasoning that because the statutory term “useless” was “not cast in stone,” the petitioners’ argument that it could pertain only to a physical use of the road was meritless. The court then disposed of the petitioners’ arguments that the board erred because the township’s evidence regarding possible future use of the road to access a park was speculative and that the evidence that the road was valuable for public and emergency access was contradicted by testimony that access was blocked by a locked barrier. The court found that these issues went to the board’s exclusive province over matters involving the credibility of witnesses and the weight afforded to the evidence, which could not be disturbed on appeal. Finally, the court noted that the trial court properly relied on cases which found vacation improper because the roads in question provided the only access to private properties. The court concluded that the trial court had properly found that vacation was not required, as Old Route 322 had not been shown to be useless, inconvenient, or burdensome.
Although the court in In Re Old Route 322 ultimately sided with the township, it should serve as a cautionary tale. A municipality’s rights in dedicated roads are not absolute and are subject to challenge. Consequently, municipalities should be mindful that a failure to maintain or use a public road may result in industrious property owners seeking vacation of the roadway.
For the full article, click here.
Reprinted with permission from the April 22, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.
Renewables Law Blog
(By Bruce Rudoy)
Bank of America last week more than tripled its environmental financing goal, saying it wants to deploy more than $1 trillion by 2030 to accelerate the transition toward a low-carbon, sustainable future, according to a recent press release.
Since launching its environmental business initiative in 2007, the bank said, it has financed $200 billion in sustainable activities, including asset-based lending, tax equity investments and capital raising in the energy and transportation sectors, among others. It pledged to back $300 billion in low-carbon activities between 2019 and 2030.
The $1 trillion pledge is in addition to $500 billion the bank aims to put toward socially inclusive development, including affordable housing, community development, healthcare, education, and racial and gender equality. Karen Fang, Bank of America’s head of global sustainable finance, said the commitment “demonstrates our belief that there is opportunity for exponential market growth in [environmental, social and governance]-themed products and services as well as market share growth.” Bank of America has helped more than 225 clients support their sustainable business needs by raising upward of $300 billion through more than 400 ESG-themed bond offerings. BofA’s commitment is consistent with the United Nations Sustainable Development Goals, to spur transformative change nationally and around the world. Beyond the $1 trillion climate-related finance, the balance of the sustainable finance goal is focused on social inclusive development, scaling capital to advance community development, affordable housing, healthcare, and education, in addition to racial and gender equality.
Banks have markedly ramped up their sustainability goals over the past two years. Between September and March, each of the six largest U.S.-based banks has pledged to achieve net-zero greenhouse-gas emissions in financing activities by 2050.
Bank of America boosts its ESG financing goal to $1 trillion by 2030 | Utility Dive
Tags: Bank of America, ESG, low-carbon, sustainable
(by Christopher (“Kip”) Power)
In an effort to ensure that owners of solar and wind energy facilities (“renewable energy facilities”) do not decommission production facilities without completing proper reclamation, on April 10, 2021, the West Virginia Legislature enacted Senate Bill 492, creating the West Virginia Wind and Solar Energy Facility Reclamation Act (as new Article 32 of Chapter 22 of the West Virginia Code (“Reclamation Act”)). The Reclamation Act (effective July 9, 2021) generally requires that an owner of a wind generation facility or a solar generation facility submit certain information to the West Virginia Department of Environmental Protection (“DEP”), including the date the facility commenced operation; a proposed decommissioning plan (prepared by a “qualified independent licensed professional engineer”); and a cost estimate for execution of that plan. The DEP will use that and other relevant information in preparing (or approving) a decommissioning plan for the site and in determining an appropriate reclamation bond amount for the facility.
Renewable energy facilities with a nameplate capacity of less than 1.0 megawatts are excluded from coverage. In addition to that limitation, the following are exempt from the application and bonding requirements of the statute: (1) those facilities owned by entities that are “regulated public utilities” who can convince the Public Service Commission (“PSC”) and DEP that they have sufficient “financial integrity and long-term viability” to obviate the need for a reclamation bond; (2) facilities whose owners are legally bound by a decommissioning agreement “based upon a qualified independent party” executed prior to July 9, 2021; and (3) facilities that are subject to a siting certificate or other authorization from the PSC that was conditioned on execution of a decommissioning agreement prior to July 9, 2021 (as long as the owner is in compliance with the agreement, the facility has not been sold to a successor who is not bound by the agreement, and the facility has not been “substantially expanded” in terms of disturbed acreage). A separate section (W.Va. Code § 22-32-8) outlines the minimum elements of acceptable decommissioning agreements.
Generally, the owner of a covered solar or wind project that is not exempt must submit an application for a reclamation bond to the DEP within twelve (12) months of starting operation, along with an application fee of $100 per megawatt of nameplate generation capacity. For wind or solar projects that are already in operation or commence operation prior to July 1, 2021, the deadline for submitting a complete application is July 1, 2022. However, that same deadline applies to the posting of a decommissioning bond, so it would be prudent to submit the application for a bond well in advance of that date.
The statute directs that the amount of any such bond shall be “based upon the total disturbed acreage of land” upon which the solar or wind energy facility is operated, less salvage value. It further specifies that the amount of any required bond may not exceed the total projected future costs of decommissioning (less salvage value).
The property owner and the owner of a renewable energy facility (along with any local governing body with jurisdiction) may enter into an agreement that calls for “alternative restoration” of buildings, fixtures, infrastructure and surface lands associated with the facility. Though it is not clear, such “alternative restoration” may be akin to an “alternative post-mining land use” that may be approved in connection with the reclamation of coal mines under the West Virginia Surface Coal Mining and Reclamation Act, W.Va. Code § 22-3-1, et seq. (“WVSCMRA”). As with WVSCMRA, any such proposal must be submitted for review and approval by the DEP before it takes effect. Under the Reclamation Act, the DEP is required to review such a proposal and render a decision regarding its acceptability within ninety (90) days of its submission.
Either separately or in conjunction with an alternative restoration plan, an owner of a renewable energy facility may petition the DEP to modify the approved decommissioning plan and adjust the bond requirements associated with it. A request for reduction in the posted bond amount based on a reduction in the total disturbed acreage may only be submitted once every five years.
Should the DEP unilaterally modify a decommissioning plan and adjust the required bond amount for any solar or wind generation facility, the owner may appeal such an order to the West Virginia Environmental Quality Board (the “EQB,” an independent, quasi-judicial appellate body within the DEP). Any failure to submit a required bond may be subject to an administrative penalty of up to $10,000 for the first day of violation and up to $500 per day for each day the failure continues. The DEP’s assessment of a penalty for such a violation is also appealable to the EQB. The statute also includes provisions addressing requests for bond release upon successful reclamation and for bond forfeiture for failure to properly decommission a solar or wind energy facility. All such DEP orders relating to bond release and forfeiture are also appealable to the EQB.
As this summary suggests, there is much to be determined by the DEP regarding how the Reclamation Act will be implemented. Interested persons should keep an eye out for proposed rules (regulations) as well as policy development from the DEP. For questions about S.B. 492 or renewable energy development in West Virginia, contact Christopher B. (“Kip”) Power at (681) 265-1362 or cpower@babstcalland.com.
Renewables Law Blog
(By Christopher (Kip) Power)
In an effort to ensure that owners of solar and wind energy facilities (“renewable energy facilities”) do not decommission production facilities without completing proper reclamation, on April 10, 2021, the West Virginia Legislature enacted Senate Bill 492, creating the West Virginia Wind and Solar Energy Facility Reclamation Act (as new Article 32 of Chapter 22 of the West Virginia Code (“Reclamation Act”)). The Reclamation Act (effective July 9, 2021) generally requires that an owner of a wind generation facility or a solar generation facility submit certain information to the West Virginia Department of Environmental Protection (“DEP”), including the date the facility commenced operation; a proposed decommissioning plan (prepared by a “qualified independent licensed professional engineer”); and a cost estimate for execution of that plan. The DEP will use that and other relevant information in preparing (or approving) a decommissioning plan for the site and in determining an appropriate reclamation bond amount for the facility.
Click here to read full article.
Tags: DEP, Department of Energy, Renewable Energy Site Reclamation Law, Senate Bill 492
The PIOGA Press
(by Lisa Bruderly)
State and federal water law permitting can pose significant obstacles for natural gas construction projects that impact waterbodies (e.g., wells pads, access roads and pipelines). The following five new and proposed regulatory changes are likely to significantly affect project design and construction in Pennsylvania.
1. Waters of the United States (WOTUS)
The definition of WOTUS identifies which waters are federally regulated under the Clean Water Act (CWA) and therefore determines when a federal permit is required for projects that involve dredging or filling of a waterbody (i.e., a Section 404 permit). The current WOTUS definition was promulgated in 2020 under the Trump administration. It has been criticized by environmental groups as federally regulating fewer types of waterbodies than the WOTUS definition promulgated under the Obama administration. For example, ephemeral streams are not regulated under the current WOTUS definition.
President Biden has already signaled he intends to change the current WOTUS definition. In his first week in office, he asked the U.S. Army Corps of Engineers and the U. S. Environmental Protection Agency (EPA) to consider revising or rescinding the current definition. He has also asked courts to stay judicial challenges to the current WOTUS definition while his administration reconsiders the issue.
The Biden administration is expected to eventually propose its own definition of WOTUS, which will undoubtedly be more expansive than the current definition and require more projects to obtain federal CWA permitting. Among other things, the Biden administration’s definition of WOTUS is likely to regulate waters (including ephemeral streams) that are considered to have a “significant nexus” with traditionally navigable waters. This definitional change is expected to extend the time and increase cost of permitting for many natural gas projects.
2. Nationwide Permits (NWPs)
In Pennsylvania, qualifying projects impacting federally regulated waters may be eligible for one of two types of Section 404 general permits (i.e., NWPs or the Pennsylvania State Programmatic General Permit (PASPGP)), in lieu of the more costly and complicated process of obtaining an individual Section 404 permit.
In January, the Corps and EPA revised and reissued 12 existing NWPs and created four new NWPs, all of which were effective on March 15. The revised NWPs largely relate to energy industry activities, including the revision of NWP12 relating to oil and gas pipeline activities.
Pennsylvania subsequently finalized new/revised regional conditions to the NWPs. Many of these regional conditions apply to all NWPs (i.e., regional general conditions); however, other regional conditions apply to a specific NWP or Corps District. For example, the regional conditions for NWP12 include requiring a pre-construction notification (PCN) for activities under NWP12 (consistent with the 2017 NWP12).
When planning a project, it is crucial to identify and comply with the new regional general conditions, as well as conditions applicable to the specific NWP and/or Corps District to avoid project revisions and/or the need to switch from an NWP to a generally more costly and more complicated individual permit. For example, the regional conditions for the reissued NWP12 differ from the regional conditions for the 2017 NWP12. The 2021 regional conditions eliminate the prohibition from using NWP12 for projects involving the permanent loss of more than 300 linear feet of stream bed for a single and complete project. In addition, the 2021 regional conditions require a remediation plan, with the PCN, for pipeline projects completed by horizontal directional drilling or other boring methods to address “any anticipated temporary structures, fills or work within waters of the U.S. necessary for the remediation of inadvertent returns of drilling fluids.”
As a further consideration, projects intending to use an NWP should evaluate whether the NWP’s applicability criteria have changed recently and whether the proposed project still is eligible for coverage, either through grandfathering of the prior NWP or coverage under the revised/new NWP. In some instances, a project may no longer be eligible for a NWP, and the project may need to be redesigned or permitted under the lengthier individual permitting process. This is especially true if the prospective permittee does not have a written verification letter, or the permitted activity was not commenced, or under contract to commence, by March 14, 2021.
Lastly, while use of many NWPs, including NWP12, historically have been suspended in Pennsylvania, the most recent NWP final regional conditions allow use of nine of the new/reissued NWPs in “areas within Pittsburgh District’s area of responsibility in the Commonwealth of Pennsylvania.” Previously, the PASPGP (discussed below) was the only general permit available for many activities. This exception to the NWP suspensions offers increased flexibility to use NWPs rather than a PASPGP in the western part of Pennsylvania. However, reliance on the NWPs is not guaranteed because the Pittsburgh District still has discretion to select the permitting tool it considers to be the most effective when evaluating a specific action.
3. PASPGP-6
PASPGP-5 expires on June 30, 2021. The Corps has not yet finalized PASPGP-6, which was proposed in September 2020. PASPGP-6, as proposed, would reduce its eligibility threshold from one acre of temporary and/or permanent impact to 0.5 acre of permanent impact and unlimited acreage of temporary impact. In addition, the reporting threshold, triggering the need for Corps review, would be based on impacts from the overall project (i.e., all regulated activities), rather than from each crossing single and complete project (i.e., crossing of a single water). Future projects that are anticipating PASPGP-6 authorization should evaluate applicability with these proposed thresholds (if finalized as proposed).
4. Section 401 Conditional State Water Quality Certification for NWPs
On December 15, 2020, PADEP conditionally granted 401 Water Quality Certification (WQC) for the new/revised NWPs. The conditions of the 401 WQC are incorporated into the NWP regional conditions at Regional General Condition II.H, as summarized below:
- All necessary environmental permits or approvals must be obtained from the Pennsylvania Department of Environmental Protection and all necessary environmental assessments must be submitted to DEP before beginning any activity authorized by the Corps under an NWP.
- Fill material may not contain any waste as defined in the Solid Waste Management Act.
- Applicants and projects eligible for these NWPs must obtain all necessary state permits and/ or approvals to ensure that the project meets Pennsylvania’s applicable water quality standards, including any project-specific WQC.
Project conditions should be reviewed to determine whether they conform with the 401 WQC. If not, the project could require an individual 401 WQC or waiver.
5. Chapter 105
On December 5, 2020, DEP proposed its first substantive revisions to its stream and wetland regulations (i.e., 25 Pa. Code Chapter 105) since 1991. Chapter 105 regulates obstructions and encroachments of waters of the Commonwealth, similar to the Corps’ Section 404 permitting program under the CWA.
Approximately 20 definitions would be added or amended by the proposed rulemaking. Many of the proposed amendments would codify existing application requirements. However, other amendments introduce new or expanded requirements, which could introduce new hurdles for applicants. Many of these revisions relate to performing an alternatives analysis to demonstrate that the project’s impacts to regulated waters have been minimized or avoided. For example, the alternatives analysis must consider “reasonably foreseeable future development” within the watershed. DEP intends to issue a technical guidance document regarding the Chapter 105 alternatives analysis by July 2021 to enhance the existing alternatives analysis in the Chapter 105 Environmental Assessment form.
The proposed revisions would also provide specificity regarding the application requirements for cumulative impact analyses and water dependency and stormwater management demonstrations. In addition, applicants would be required to develop a compensatory mitigation plan for unavoidable impacts to ensure “no net loss” of wetland resources. If finalized as proposed, the rulemaking will likely increase cost and effort required to obtain a Chapter 105 permit.
Conclusion
As discussed above, 2021 already has, and will continue to, present challenges regarding the permitting of projects that disturb regulated waters, including wetlands, in Pennsylvania. Natural gas project designers and developers should stay abreast of these regulatory changes to anticipate and prepare for new requirements and avoid unnecessary delays.
For the full article, click here.
Renewables Law Blog
(By Moore Capito and Robert Stonestreet)
The West Virginia Legislature has passed a bill that will make it easier for retail electric customers to establish on-site solar energy facilities. Sponsored by Babst Calland Shareholder and House Judiciary Chairman Moore Capito, House Bill 3310 states that solar energy facilities designed to power only the premises where they are located are exempt from the jurisdiction of the West Virginia Public Service Commission under certain conditions. This means that the PSC is not involved in regulating the rates and other aspects of qualifying solar facilities. To be exempt, power generated from such a facility must be subject to a “power purchase agreement” with the retail electric customer. A PPA generally governs the design, permitting, financing, and installation of a solar facility at a retail electric customer’s location by a solar energy developer. Under a PPA, a retail customer purchases the power generated by the facility at an agreed upon rate. In addition to receiving revenue generated from the energy produced, the developer is also eligible for renewable energy tax credits. The bill is intended to promote solar installations at residences, small businesses, and industrial sites by allowing third-party developers to design and finance the installation of solar panels and then sell the electricity generated to the consumer.
To be exempt from PSC jurisdiction, an on-site solar facility must be “located on and designed to meet only the electrical needs of the premises of a retail electric customer” and be designed not to exceed certain generation limits: 25 kilowatts for residential customers; 500 kilowatts for commercial customers; and 2,000 kilowatts for industrial customers. The legislation also establishes a cap on the aggregate amount of exempt on-site solar energy generation within West Virginia. The total of all solar PPAs and net metering arrangements cannot exceed 3% of an electric utility’s aggregate customer peak demand in the state during the previous year. Under a net metering arrangement, a retail customer who generates more power through an on-site solar facility than the customer uses will receive a credit for the excess power that is sent out to the grid rather than consumed.
Before entering into a PPA for an on-site solar facility, a retail customer must notify the electric utility. If the electric utility does not notify the customer within 30 days that a cap has already been reached, the customer may proceed with the project.
If you have any questions about House Bill 3310 or solar development in West Virginia, please contact Robert M. Stonestreet (681.265.2117; rstonestreet@babstcalland.com) or Moore Capito (681.205.8953; mcapito@babstcalland.com).
Tags: House Bill 3310, retail electric, solar energy, West Virginia Public Service Commission
The Legal Intelligencer
(by Alana Fortna)
Introduction
The great Bob Dylan sang, “may you have a strong foundation when the winds of changes shift.” His song may have been released nearly 50 years ago, but his lyrics ring true today in many facets of life, even environmental law and policy. President Joe Biden stayed true to his word on combatting climate change when he signed an executive order before the dust settled on his luggage in the White House. In this article, I discuss these policy changes and my opinions on what this could mean for Superfund sites.
Executive Order on Tackling the Climate Crisis at Home and Abroad
On Jan. 27, Biden signed an executive order regarding climate change and related environmental justice concerns. The executive order speaks to taking a “governmentwide” approach to the climate crisis.
Section 202 establishes the White House Office of Domestic Climate Policy headed by a National Climate Advisor with a National Climate Task Force consisting of Executive Branch agency heads. Pursuant to Section 211, within 120 days of the order, each federal agency must submit a draft action plan to the task force describing efforts to bolster adaption and increase resilience to climate change. To ensure follow-through, agencies must submit annual progress reports on their implementation efforts.
Section 216 provides that within 90 days of the order, the Secretary of the Interior must submit a report to the task force recommending steps to take, working with state, local, Tribal, and territorial governments, agricultural and forest landowners, fishermen, and other stakeholders, to conserve at least 30% of our lands and waters by 2030. The executive order also calls for the Secretary of Commerce to “collect input from fishermen, regional ocean councils, fishery management councils, scientists, and other stakeholders on how to make fisheries and protected resources more resilient to climate change, including changes in management and conservation measures …” This 30% conservation goal could hasten the EPA’s expectations for remedial action at Superfund sites situated in and around stakeholder communities, such as Tribal lands that rely on fish and wildlife for sustenance.
Section 219 calls on agencies to “make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities …” Additionally, in Section 222, the executive order outlines key responsibilities for the EPA: strengthen enforcement of environmental violations with disproportionate impact on underserved communities and create a community notification program to monitor and provide real-time data to the public on current environmental pollution in places with the most significant exposure.
- Potential Impacts of Biden’s New Policies on Superfund Sites
The discussion of climate change and environmental justice in the context of Superfund is not novel. In 2011, the EPA issued its first policy statements on climate change adaptation and coordination with Tribal governments. The new Biden policies mean a heightened focus on Superfund sites with potential impacts during: site listing, remedial activity, the five-year review and litigation.
- Potential Impacts of Biden Policies on Site Listing
The EPA uses the hazard ranking system (HRS) to assess a site for inclusion on the National Priorities List (NPL). The HRS focuses on risk and determines a score based on four pathways. HRS guidance manual (HRS manual), OSWER Directive 9345.1-07 (Nov. 1992), at p. 1. The four pathways are: ground water migration, surface water migration, soil exposure and subsurface intrusion; and air migration. The risk factors are grouped into three categories: likelihood of release, waste characteristics, and targets affected by the release. HRS Manual, at p. 2. “Targets consist of people, sensitive environments, fisheries, and resources that potentially can be affected by a site.” HRS Manual, at p. 24. The “targets factor” is the only category with no maximum value.
The executive order policies could bleed into the EPA’s scoring process under the HRS. For example, one of the pathways considers “subsurface intrusion” from contaminated groundwater or saturated soil below buildings. Even if vapor intrusion impacts are not documented, the EPA must evaluate the potential for future exposure. See Technical Support Document for U.S. EPA’s Final Rule: Addition of a Subsurface Intrusion Component to the Hazard Ranking System (Nov. 2016), at p. 20. The EPA considers the distance between the highest known point of subsurface contamination and the lowest point of a building. Some sites with contaminated groundwater may be in areas impacted by tidal flow or recharge from rivers. The depth to water table may be decreasing as the groundwater level is impacted by extreme storm events and tidal flows. Depending on the time of year and the depth to groundwater, the question of “potential for future exposure” could become more complicated and problematic.
Additionally, the EPA considers the likelihood of a release of contaminants. Major storm events in certain regions of the country influence storm surges and flows in rivers, particularly those that have tidal influence. This can impact sediment distribution in a contaminated river, which can result in the release or re-suspension of contaminated sediment. Rising sea water levels and corresponding influence on rivers could also impact source control measures and lead to recontamination. Also, any contaminated sites located in and around Tribal territories or waterbodies with critical fisheries used for sustenance fishing may face heightened scrutiny under the “targets factor,” which has no maximum value.
- Potential Impacts of Biden Policies on Ongoing Remedial Activity and Five-Year Review
Pursuant to CERCLA Section 121, a remedial action must: be protective of human health and the environment, comply with applicable or relevant and appropriate requirements of federal and state law, be cost-effective, utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable, and be preferential to treatment as a principal element. See 42 U.S.C. Section 9621(a) and (b); EPA Guide to Selecting Superfund Remedial Actions, OSWER Directive 9355.0-27FS (April 1990). The National Contingency Plan (NCP) defines nine criteria to compare remedial alternatives and select a remedy that satisfies these requirements. At least three of the NCP criteria could be impacted by the executive order: long-term effectiveness and permanence of the remedy, reduction of toxicity, mobility or volume, and community acceptance.
We could see climate change impact the agency’s consideration of the long-term effectiveness and permanence of the remedy. The agency may be focused on extreme weather events in a region and may want the party performing the remedial design to evaluate this and consider whether any modifications/additions are needed.
The reduction of toxicity, mobility or volume through treatment criterion focuses on the anticipated performance of the treatment technologies. If a site is adjacent to a river that has become more prone to flooding, then a treatment technology may need to account for future transition into a veritable floodplain. If a site involves contaminated groundwater, and that groundwater is influenced by a tidal river, does this need to be accounted for differently under the backdrop of climate change? Does investigation and modeling of groundwater need to account for potential future changes in groundwater flow and levels from climate change? It is possible these difficult questions could become a more regular part of the remedial alternative analysis.
As to community acceptance of a remedial alternative, the executive order focuses on environmental justice and calls for more active engagement with state, local and Tribal government stakeholders. While public notice/comment has always played a role in the Superfund program, the executive order heightens this involvement. It is possible we will see updated policies and regulations making participation by identified stakeholders more deliberate and occur earlier in the process. The adage of “too many cooks in the kitchen” comes to mind here.
Under CERCLA Section 121(c), remedial actions are subject to review every five years from initiation of the remedial action. If the EPA determines that further action is necessary during the five-year review, then it will require such action. Given this mandatory review process, climate change and its potential impacts on the permanence and effectiveness of a selected remedy is a possible concern that is not easily managed.
- Potential Impacts of Biden Policies on Litigation
The executive order calls on the EPA to: strengthen enforcement of environmental violations with a disproportionate impact on underserved communities and create a community notification program to monitor and provide real-time data to the public on current environmental pollution in places with the most significant exposure. Since many contaminated sites are situated in or adjacent to underserved communities or Tribal lands, it is possible that the EPA will increase its information gathering and inspection efforts under CERCLA Section 104(e), as well as its notification of liability. Because the executive order boasts a sense of urgency and calls for heightened scrutiny in these areas, this could also result in an uptick in enforcement action by the EPA at contaminated sites. If potentially responsible parties (PRPs) are not signing up fast enough as work parties for remedial investigation or design, the EPA may be quicker on its draw with its enforcement options.
Additionally, entities tied to contaminated sites could see an uptick in private litigation, including cost recovery actions, toxic tort cases, and citizen suits. It is not just a matter of increased regulation and oversight of contaminated sites and industrial operations. It is also a matter of increased litigation that is borne out of these policy changes. The executive order calls on the EPA to establish a more robust and timely notification system regarding environmental pollution. Such heightened transparency regarding existing pollution and exposure to such pollution could lead to increased litigation alleging health effects, property damage and diminution in property value.
We could also see an increase in “private attorney general” actions in the form of citizen suits under various federal environmental statutes. There is public interest in climate change impacts and environmental justice. Such litigation may arise despite what is already being done to address the existing pollution and that remedial measures take time to implement. Regardless of whether a citizen suit grounded in climate change has teeth, increased litigation is costly and disruptive for PRPs trying to remediate a contaminated site and industrial facilities trying to operate within the confines of the applicable regulatory regime and their existing permits.
For the full article, click here.
Reprinted with permission from the April 8, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.
Renewables Law Blog
(By Varun Shekhar)
On March 21, 2021, Pennsylvania Governor Tom Wolf announced the Pennsylvania “Project to Utilize Light and Solar Energy” (“PULSE”), a renewable energy project consisting of seven new solar farms totaling 191 MW in capacity to be constructed in various counties across the Commonwealth by 2023. Upon completion, the PULSE Project is expected to provide upwards of 360,000 MWh of electricity each year, estimated to be enough to supply nearly half of the state government’s annual electricity consumption. Billed as the largest solar commitment by any government in the US, 16 Commonwealth agencies are expected to use electricity generated from the PULSE Project, including, among others, the Pennsylvania Departments of Environmental Protection, Conservation and Natural Resources, Transportation, and Health, as well as the Game and Fish & Boat Commissions.
Part of Governor Wolf’s “GreenGov” initiative, the PULSE Project is a public-private partnership between the Commonwealth, Lightsource BP, and Constellation. Under the project, Lightsource BP will finance, construct, own and operate the solar farms, which will be built in Columbia, Juniata, Montour, Northumberland, Snyder, and York Counties. Pursuant to a Power Purchase Agreement, Constellation, an electricity supplier, will purchase electricity generated from the solar farms and distribute it to the Commonwealth’s participating agencies under a 15-year fixed-price supply agreement. Expected benefits of the PULSE Project include an estimated reduction of 157,000 metric tons of carbon dioxide emissions each year and creation of over 400 jobs.
Tags: GreenGov Initiative, Project PULSE, renewable energy, solar energy