Articles, Alerts & Perspectives

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. …

Charleston, WV

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 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. …

Washington, DC

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

Washington, DC

Renewables Law Blog

(By Ashleigh Krick)

On March 25, 2021, the Department of Energy (DOE) announced plans to reduce the cost of solar energy technologies by 60% over the next 10 years by setting new cost targets and establishing funding opportunities.  The DOE accelerated its cost target for utility-scale solar by establishing a new goal of driving down the current cost of 4.6 cents per kilowatt-hour (kWh) to 3 cents/kWh by 2025 and 2 cents/kWh by 2030.  The DOE also announced $128 million in funding and initiatives aimed at lowering costs, improving performance, and speeding up the deployment of solar energy.  Specifically, the DOE announced funding for advancing solar photovoltaic (PV) materials and a prize competition for perovskite technologies, increasing the lifetime of silicon-based PV systems, and supporting several concentrating solar-thermal power projects.    The DOE stated that in order to meet the Biden Administration’s goal of 100% clean electricity by 2035, lowering the cost of solar energy technologies is needed to accelerate investment and deployment.  More information about DOE’s funding opportunities can be found here: https://www.energy.gov/eere/solar/funding-opportunities.

Tags: Department of Energy, DOE, energy, solar

The Legal Intelligencer

(by Alex Farone)

As outside counsel for a company, a concern is always whether the corporation will be named as a respondent or defendant in litigation. When those situations do arise, counsel should pay particular attention to the nuances of the attorney-client privilege when beginning an investigation. Many attorneys make assumptions regarding the applicability of the attorney-client privilege when dealing with the company’s employees. Those assumptions, in certain circumstances, can result in discoverable communications. Because in-house counsel serve a dual role of providing legal advice as well as business advice, a more careful analysis must be given to their communications with employees. Therefore, this article focuses solely on typical communications to and from outside counsel when performing an investigation.

In Pennsylvania, the attorney-client privilege operates as a two-way street to protect client-to-attorney and attorney-to-client communications made for the purpose of obtaining or providing legal advice. When the client is a company, do all employees count as an extension of the client such that conversations with them would be privileged? In most situations, they do not.

For a corporate client, the attorney-client privilege extends to communications between the attorney and the corporation’s agents or employees authorized to act on the corporation’s behalf. This is typically interpreted as directors, officers and management employees.

Until the U.S. Supreme Court’s decision in Upjohn v. United States, 449 U.S. 383 (1981), some courts used to adhere to the so-called “control group test,” a similar but restricted version of the “authorized to act” standard used in Pennsylvania. The control group test only applied the privilege to communications made to officers or agents of the corporation responsible for directing the corporation’s actions in response to legal advice. …

Washington, DC

Renewables Law Blog

(By Ben Clapp)

A bipartisan group of federal lawmakers recently introduced a bill aimed at jumpstarting growth in the energy storage sector.  If enacted, the Energy Storage Tax Incentive and Deployment Act of 2021 would broaden the investment tax credit program, which is widely credited with stimulating considerable growth in the solar sector, to include standalone energy storage projects.  The tax credit is currently only available for energy storage projects that are charged directly from other clean energy projects that qualify for the credit, such as solar.  In contrast, the proposed legislation would revise the investment tax credit so that it covers residential battery systems as well as large commercial and utility-scale storage projects, including batteries, pumped hydropower, hydrogen storage, thermal energy storage, and regenerative fuel cells, regardless of whether they are coupled with a qualifying solar project.  Expanding the credit to standalone projects is intended to drive investment to storage projects with greater charging flexibility, potentially allowing storage systems to access a larger piece of the energy market.

The large-scale deployment of domestic energy storage systems is largely viewed as critical to the continued growth of the renewables sector, as well as a key component of achieving the nation’s energy reliability and resiliency goals.  While it may be unrealistic to expect that extension of the tax credit to energy storage projects would result in the stratospheric levels of growth enjoyed by the solar industry over the past decade, the tax credit’s proven track record for stimulating renewables development has energy storage advocates hopeful that the proposed legislation would drive significant investment in the sector, resulting in a meaningful increase in energy storage deployment.

Tags: energy storage, Energy Storage Tax Incentive and Deployment Act of 2021, tax credits

Pittsburgh, PA

Renewables Law Blog

(By Christopher Hall)

The Department of Energy (DOE) recently announced that it will be awarding up to $20Million to support research and development of emerging flow battery storage technology.  The DOE’s announcement can be found here.  Battery storage has been identified by the DOE as an integral piece of the puzzle to modernizing our grid and enabling the deployment of additional renewable energy resources.  Regarding flow battery technology, the DOE stated that “while lithium-ion batteries are commonly used in electric vehicles and portable devices for various applications, flow batteries are particularly well-suited for grid storage needs.”  The DOE aims to incentivize development of scalable and cost-effective “mid-sized” flow battery systems (between 10 to 100kWh).  This funding opportunity follows several other recent announcements supporting the growth of energy storage, including the DOE’s Energy Storage Grand Challenge, a Department-wide program to accelerate the development, commercialization, and utilization of next-generation energy storage technologies and sustain American global leadership in energy storage, and a recently proposed Federal Bill to introduce a federal tax credit for energy storage, similar to those available to solar and wind projects.

Tags: battery storage, Department of Energy, DOE, Energy Storage Grand Challenge

The Legal Intelligencer

(by Dan Hido)

On Feb. 27, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published the final revision to the technical guidance document (TGD) No. 562-4180-306, titled “Civil Penalty Assessments for Coal Mining Operations,” 51 Pa.B. 1083 (Feb. 27, 2021). The previous version of the TGD was last updated in 2005. The PADEP first published draft revisions to the TGD on May 4, 2019, and subsequently re-published an updated draft on Oct. 3, 2020 because substantial changes were made in response to public comments.

The TGD sets the procedure and formula that the PADEP will generally follow in assessing penalties against coal mining operators for violations of Pennsylvania’s coal mining laws and the Clean Streams Law. The revised TGD makes several significant changes to how such penalties are calculated, including new, separate procedures for assessing penalties for water quality violations and revisions to the calculation of penalties for all other violations based on the seriousness of the violation and the culpability of the operator.

New Procedures for Water Quality Violations

The most significant change to the TGD is the addition of new procedures for assessing civil penalties for water quality violations under Section 605 of the Clean Streams Law, 35 P.S. Section 691.605(b). Such violations include violations of NPDES permit effluent limitations, and under the TGD each parameter exceeding an effluent limitation may constitute a separate violation. These procedures generally follow the 2005 TGD’s existing formula applicable to all violations, which is based on seriousness of the violation, culpability of the operator, costs to the commonwealth, savings to the violator, violation history and speed of compliance. However, the application of these factors will evaluate components specifically relating to water quality, such impacts to water resources or degree of exceedance of effluent limitations. …

RMMLF Mineral Law Newsletter

(by Joe Reinhart, Sean McGovern and Casey Snyder)

On November 18, 2020, Senate Bill 790 (SB 790), the Conventional Oil and Gas Wells Act, sponsored by Sen. Scarnati (R-Jefferson), was presented to Governor Tom Wolf for signature. Governor Wolf vetoed the bill on November 25, 2020. See Governor Wolf’s Veto Letter for SB 790 (Nov. 25, 2020). SB 790 would have set a legislative framework for regulations for the conventional oil and gas industry in Pennsylvania. See Memorandum from Sen. Scarnati to All Senate Members, “Conventional Oil and Gas Wells Act” (June 6, 2019). In his veto letter, Governor Wolf acknowledged the difficulty in regulating conventional and unconventional operations under Pennsylvania’s current program, which was updated by law in 2012 and by regulations for the unconventional industry in 2016. These updates were tailored to the new unconventional industry developing in the state, and placed new requirements on the conventional industry. Proposed regulations for the conventional industry were not promulgated in 2016 after the state legislature passed legislation requiring rules for the conventional industry to be promulgated separately from the unconventional rulemaking. See Pennsylvania Grade Crude Development Act, 58 Pa. Stat. §§ 1201–1208.

Governor Wolf cited several reasons for vetoing the bill and why he believed it posed a risk to the public health and environment. He characterized the bill as including “roll backs,” stating that protections for drinking water, public resources, spills, and erosion and sediment control are weakened for the conventional industry, which he alleged violates regulations at a rate “three to four times” higher than the unconventional industry. Additionally, he stated that several parts of the bill were “likely” unconstitutional under the Pennsylvania Constitution. …

RMMLF Mineral Law Newsletter

(by Joe Reinhart, Sean McGovern, Daniel Hido and Gina Falaschi)

Pennsylvania’s Environmental Quality Board (EQB) published its proposed Regional Greenhouse Gas Initiative (RGGI) CO2 Budget Trading Program rule in the Pennsylvania Bulletin on November 7, 2020, which opened the public comment period for the rule. See 50 Pa. Bull. 6212 (Nov. 7, 2020). EQB hosted a number of virtual public hearings in December 2020 and accepted comment until January 14, 2021. EQB received more than 13,000 public comments on the proposed rule. Currently, the Independent Regulatory Review Commission (IRRC) is reviewing the proposed CO2 Budget Trading Program rule. The IRRC reviews regulations under the Regulatory Review Act to determine whether a proposed regulation is consistent with the authorizing statute and whether the regulation is in the public interest. While the IRRC has access to all public comments submitted to EQB regarding the proposed CO2 Budget Trading Program rule, the IRRC has also received a significant number of comments directly from legislators and the public. The IRRC’s comments, recommendations, or objections on the proposed regulation were due to the Pennsylvania Department of Environmental Protection by February 16, 2021.

A final regulation is expected later in 2021, at which time EQB will also release its responses to the public comments submitted on the proposed rule. The rule is tentatively scheduled to take effect in January 2022. For detailed descriptions of the content and implementation of the proposed rule, see Vol. XXXVII, No. 4 (2020), Vol. XXXVII, No. 3 (2020), Vol. XXXVII, No. 2 (2020), Vol. XXXVII, No. 1 (2020), Vol. …

Washington, DC

EmTech Law Blog

(by Gina Falaschi)

The United States is experiencing a wave of state-led clean transportation initiatives that are gaining substantial momentum. Faced with insufficient federal action, states started focusing their efforts on the sector that produces the largest percentage of greenhouse gas: transportation. On November 10, 2020, the Environmental Law Institute and Babst Calland co-hosted a webinar that explored these initiatives, their potential impact, and funding sources. Click here for a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Tags: Transportation, Vehicles

Babst Calland has been named to this year’s Pennsylvania Business Central’s “Top 100 Organizations” list and profiled in its Signature Top 100 issue. Nominations were taken throughout the publication’s 23-county coverage area, and the final organizations were selected by an editorial committee due to their positive impacts in the business community of central Pennsylvania.

For the full list, click here.

Environmental Law Reporter

The United States is experiencing a wave of state-led clean transportation initiatives that are gaining substantial momentum. Faced with insufficient federal action, states started focusing their efforts on the sector that produces the largest percentage of greenhouse gas: transportation. On November 10, 2020, the Environmental Law Institute and Babst Calland co-hosted a webinar that explored these initiatives, their potential impact, and funding sources. Click here for a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.