Archive: September 2015

1
The “Washington Clean Air Rule” is coming
2
K&L Gates to Host Deal Room at Energy Storage North America Conference
3
Greater Sage-Grouse Avoids ESA Listing
4
Where You Operate Matters: the Fifth Circuit Widens the Split on MBTA Liability
5
WUTC Investigation Shines the Spotlight on How to Value Energy Storage – Comments Due September 25, 2015
6
EPA’s Clean Power Plan: A Regional Analysis
7
OPUC reschedules Community Solar Workshop 2 for September 22, 2015
8
Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation

The “Washington Clean Air Rule” is coming

Washington State is about to become the latest state to take local action to address global climate change. Governor Jay Inslee recently directed the Washington Department of Ecology (“Ecology”) to make new rules aimed at reducing greenhouse gas (“GHG”) emissions in the state. The new rules are scheduled to be adopted in summer 2016 and to take effect shortly thereafter.[1] The result will be called the “Washington Clean Air Rule.”[2]

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K&L Gates to Host Deal Room at Energy Storage North America Conference

K&L Gates will once again be the Exclusive Deal Room and Gold Sponsor of the Energy Storage North America Conference, October 13 – 15 in San Diego, CA.

The K&L Gates Deal Room is an ideal place to hold your energy storage business meetings in a convenient and private atmosphere during the conference. Reservations are required — to make yours, click here.  In addition, discounts for the conference are available.  Please contact Bill Holmes for more information.

Greater Sage-Grouse Avoids ESA Listing

The U.S. Fish and Wildlife Service (“Service”) announced on Tuesday, September 22, 2015, that it would not list the greater sage-grouse under the Endangered Species Act (“ESA”).

This decision represents a change of direction for the Service, which announced in 2010 that the grouse was “warranted for listing”, but the Service now says “new information about the status of the species, potential threats, regulatory mechanisms, and conservation efforts indicates that listing is not warranted.”

Specifically, the Service determined that “the primary threats to greater sage-grouse have been ameliorated by conservation efforts implemented by Federal, State, and private landowners.” The Service identified state regulations, new federal regulations, conservation efforts, and advancements in oil and gas technologies as having reduced threats to the grouse “in approximately 90 percent of the breeding habitat through avoidance and minimization measures.”

Read more on K&L Gates HUB

Where You Operate Matters: the Fifth Circuit Widens the Split on MBTA Liability

Last week the Fifth Circuit issued a ruling that reduces uncertainty regarding criminal liability for taking migratory birds. In particular, the ruling alleviates potential liability for facilities where interactions with migratory birds are effectively unavoidable—such as wind production facilities, power transmission lines, and other energy production or manufacturing facilities. These types of facilities face a fundamental tension under the Migratory Bird Treaty Act (“MBTA”): on the one hand, the MBTA imposes strict criminal liability for the take of migratory birds; and on the other hand, there is no permit available to authorize the unintentional take of migratory birds. The Fifth Circuit’s ruling joins other circuits around the country in holding that the MBTA applies only to the intentional take of migratory birds; however, the court’s ruling widens the split between circuits that differ in how MBTA liability applies.

Read the full alert on K&L Gates HUB

WUTC Investigation Shines the Spotlight on How to Value Energy Storage – Comments Due September 25, 2015

The Washington Utilities and Transportation Commission (the “WUTC”) is in the midst of an investigation into methods for modeling the costs and benefits of energy storage in utility integrated resource plans (“IRPs”). During its review of the 2013 IRPs of Washington’s regulated utilities (Puget Sound Energy (“PSE”), Avista, and PacifiCorp), the WUTC directed the utilities to start considering how energy storage could be incorporated into future IRPs. As part of this effort, WUTC staff issued a white paper in May 2015: Modeling Energy Storage, Challenges and Opportunities for Washington Utilities. On August 7, the WUTC noticed a comment period on the white paper; the comment period closes on September 25, 2015. The WUTC will use the comments received during this period to determine whether it is necessary to give utilities direction on how energy storage should be treated in their planning and procurement processes, and may issue a policy statement at the end of the investigation to provide that guidance.

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EPA’s Clean Power Plan: A Regional Analysis

EPA’s recently issued Clean Power Plan (“CPP” or “Plan”) affects every state differently. The Plan has a decidedly nationwide impact—reducing the United States’ power plant greenhouse gas emissions 32 percent by the year 2030. But the Plan functions entirely on a state-by-state level, treating each state in a different way based on its unique emissions profile. In this way, the Plan seeks to harness the power of federalism to achieve its ambitious goals.

While the target-based approach is in some ways similar to the structure of EPA’s National Ambient Air Quality Standards (NAAQS), the CPP has revised and reordered certain elements, and has modified the targets for carbon dioxide (CO2) reductions required by individual states. Although NAAQS are set on a nationwide basis, under the CPP every state has a different carbon target based on a calculus that includes the state’s emissions profile and energy mix. Thus, some states (like Montana and West Virginia) are subject to greater emission reductions than other states (like Idaho and Maine). And while states have some flexibility to determine how to meet their targets, the devil will be in the details, as evidenced by EPA’s compliance pathway chart.

Read the full alert on K&L Gates HUB

OPUC reschedules Community Solar Workshop 2 for September 22, 2015

The second workshop in the Oregon Public Utility Commission (the “Commission”) Docket No. UM 1746 (HB 2941 Community Solar Program Design) has been rescheduled from Wednesday, September 23rd to Tuesday, September 22. The workshop was rescheduled in order to accommodate stakeholders who observe Yom Kippur and to encourage stakeholder participation.

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Eagles Back in the Nest: FWS 30-Year Eagle “Take” Rule Vacated Less than Two Years After Implementation

On August 11, 2015, the United States District Court for the Northern District of California struck down a U.S. Fish and Wildlife Service (the “Service”) regulation that increased the maximum duration of programmatic permits for the incidental “take” of bald and golden eagles from five to thirty years (“the 30-Year Rule”)1. The decision sets aside the 30-Year Rule and leaves its fate in the hands of the Service, with potentially negative consequences for those entities that interact with avian resources. Without the 30-Year Rule, entities like wind farms—where avian interaction is effectively unavoidable—face serious questions related to securing permit coverage for their operations and prosecution for incidental take of eagles.

Moreover, until the 30-Year Rule is either reshaped through the administrative process or challenged on appeal, the previous rule—with its five year permit term and need for reapplication/NEPA review every five years—remains in place. Reapplication will trigger administrative burdens for both the permittee and the Service, with respect to both meeting the requirements of NEPA and the potential for appeals.

Read the full alert here on K&L Gates Hub

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