Seventeen states filed a motion on May 18 for a nationwide preliminary injunction to block the Trump administration's replacement "Waters of the U.S." rule, but the court raised questions May 20 on whether an injunction should be imposed before the rule takes effect June 22.
The motion, filed in U.S. District Court for the Northern District of California, follows up on litigation states filed with the court May 1 challenging the rule, which was finalized April 21 by the Environmental Protection Agency and the U.S. Army Corps of Engineers.
"The change to the status quo upon the rule becoming effective is only a lifting of federal regulations—the follow-on harms that plaintiffs contend will follow may reasonably be presumed to develop over time," U.S. District Judge Richard Seeborg said in a May 20 order.
Seeborg gave the plaintiffs until May 22 to file a motion opposing the Trump administration's motion to extend the briefing schedule.
In their motion for an injunction, the states said the waters rule "is both legally incorrect and unsupported by the record." In their May 1 suit, the states allege the rule ignores the "chemical and biological connectivity of waters."
The rule, which replaced a regulation the Obama administration adopted in 2015, narrowed Clean Water Act protection to four categories of water bodies, including territorial seas and "traditionally navigable" water bodies such as rivers and large lakes, perennial and intermittent tributaries, lakes and ponds if they contribute surface flows to jurisdictional waters "in a typical year," and wetlands adjacent to jurisdictional waters.
Among the waters excluded from federal jurisdiction are groundwater, ephemeral water bodies that flow only after precipitation, diffuse stormwater runoff and sheet flow.
Co-Ops Eligible for Loans, SBA Says
Electric cooperatives are eligible for Paycheck Protection Program loans, the Small Business Administration decided in an interim final rule issued May 14.
The rule said that co-ops organized as tax-exempt entities under Section 501(c)(12) of the Internal Revenue Code are "eligible PPP borrowers" through June 30, as long as they meet other eligibility criteria spelled out in the Coronavirus Aid, Relief, and Economic Security Act.
Financially stressed rural co-ops have pressed Congress to clarify the PPP's reach. A National Rural Electric Cooperative Association study last month estimated co-ops face a $10-billion economic hit through 2022 because of load losses and unpaid bills linked to rising unemployment and moratoria on utility disconnections.
The $3-trillion legislation the House passed May 15 specifies that all entities organized under Section 501(c) of the tax code would be eligible for the loans. The legislation, HR 6800, faces dim prospects in the Senate and a White House veto threat.
Solar Industry Seeking Lower Rents
The solar energy industry is working with the Bureau of Land Management to lower power plant right-of-way rents that companies say greatly exceed fair market value, a trade association leader told Clearing Up May 21.
"We are in active conversation with BLM to reach agreement on what will be a reasonable rates schedule," Shannon Eddy, executive director of the Large-scale Solar Association, said. She said rents are scheduled to go up in 2021, and current charges "far exceed fair market value."
BLM rents came into the spotlight following a Reuters report that the agency has sent bills for retroactive rents to solar and wind power plant owners, following an informal pause in 2018 to address industry complaints about the charges.
The BLM "green book" supporting the Interior Department's fiscal 2021 budget request estimated wind and solar right-of-way rent collections for 2018 and 2019 at roughly $21.6 million and slightly more than $1.1 million, respectively, while collections for 2020 and 2021 were projected at $50 million and $21 million, respectively. "Revenue estimates for 2020 include pending collections for 2019," the BLM green book said.
Eddy said widescale solar development on federal lands will be critical for California to meet its target of decarbonizing its electric power system by 2045. "We've got to have a rational lands approach," she said.
Industry complaints about right-of-way rents date back years. In 2016, BLM adopted a rule governing rents and megawatt-capacity fees for wind and solar on federal lands. A subcommittee of Interior's Royalty Policy Committee in 2018 said BLM's rent policy "creates rent uncertainty for fixed revenue-stream assets and escalates at well above market rate, contributing to public land being uncompetitive with private land."
A BLM fee schedule shows 2020 per-acre rental fees across 15 zones ranging from $17.48 to as high as $58,741.
In addition, the subcommittee report says, "current policy sets minimum solar bond rates 10 times above market, inconsistent with reclamation cost estimates, causing credit terms for public land-sited facilities to be uneconomic compared to private land."
The royalty committee called on Interior to "update and clarify" right-of-way and megawatt-capacity charges on federal lands in Arizona, California, Colorado, Nevada, New Mexico and Utah.
In testimony to the House Natural Resources Committee's Energy and Mineral Resources Subcommittee on July 25, 2019, Solar Energy Industries Association CEO Abigail Ross Hopper said rent charges, combined with megawatt-capacity fees and bonding costs, "have combined to make public lands uncompetitive for new projects."
The hearing spotlighted legislation, HR 3794, a bipartisan bill that would authorize the Interior secretary to cut rents and capacity fees if they are found to exceed fair market value. The legislation is pending in the House.
The focus on BLM rents came as SEIA estimated that the coronavirus pandemic has eliminated five years' worth of jobs growth in solar development. In a study released May 18, SEIA projected solar jobs would total 188,000 in June, down 114,000 from earlier projections.
The SEIA study says job losses are forecast to total 60 percent or more in seven states, including Washington and Idaho. California, Colorado and Montana would experience losses between 40 percent and 59 percent, the study says.
Carper Asks for EPA IG Probe of Cars Rule
Sen. Tom Carper (D-Del.) asked EPA's inspector general on May 19 to investigate what he called "irregularities" in how the agency developed its rule rolling back tailpipe greenhouse gas emissions standards for motor vehicles.
Carper, ranking Democrat on the Senate Environment and Public Works Committee, said that "four hard copies" of EPA career staff's technical concerns with the draft final rule were sent to the Department of Transportation on Feb. 5, "but EPA political officials apparently purposefully and potentially illegally withheld these documents from being placed into the rulemaking docket and made available to the public."
Carper also submitted documents to the IG that he said showed the Transportation Department's National Highway Traffic Safety Administration wrote much of the rule.
"The apparent absence of EPA authorship of its own Clean Air Act vehicle greenhouse gas emissions rule may be unlawful," Carper wrote to EPA IG Sean O'Donnell.
In addition, Carper alleged that before the draft final rule was sent to the Federal Register for final adoption, "the agencies made significant changes" without opening a technical corrections rulemaking with notice and comment.
EPA and the Transportation Department on March 31 finalized the rule, which unwound the 2012 One National Program harmonizing federal and California tailpipe GHG emissions and federal fuel-economy standards. The finalized rules mandate 1.5-percent annual increases in emissions limits and fuel-economy improvements in model years 2021 to 2026. The One National Program required 5-percent increases, EPA said.
EPA Proposes Extra Time for Wood Heater Sales
EPA on May 15 proposed giving retailers of residential wood heaters until Nov. 30 to sell appliances that don't meet air-quality standards that took effect that day.
EPA's proposal, if finalized, would reverse an April 2 decision rejecting an extended "sell-through" period for noncompliant stoves, as well as wood-fired hydronic heaters and forced-air furnaces.
EPA had concluded that manufacturers failed to provide adequate evidence that they have been unable to produce heaters that will comply with emissions limits, set in a 2015 rule, that took effect May 15.
The agency's proposal drew an angry response from Sen. Tom Carper (D-Del.), ranking Democrat on the Senate Environment and Public Works Committee.
At a May 20 hearing of the committee, EPA Administrator Andrew Wheeler said, "It's important to remember that these wood heaters meet the Obama 2015 standards." He noted that dealers typically sell off heaters in the spring.
"With the closure of all the stores around the country, they were unable to sell that inventory, and under their contracts, they have to purchase, they have to buy back the wood heaters that are still on the shelves," Wheeler said.
Senate Approves Wright, Hanson for NRC
The Senate on May 21 waved through the nominations of David Wright and Christopher Hanson to serve on the Nuclear Regulatory Commission.
Wright, a former chairman of the South Carolina Public Service Commission who has sat on the NRC since 2018, was confirmed for a full five-year term ending June 20, 2025.
Hanson, who serves on the minority staff of the Senate Appropriations Committee's Energy and Water Subcommittee, was nominated to fill a vacancy created by Stephen Burns' resignation. His term expires June 30, 2024.
FERC Authorizes Alaska LNG Project
FERC authorized a $43-billion project on May 21 to liquefy and export gas from Alaska's North Slope.
The authorization will allow Alaska Gasline Development, a state-owned firm, to build a Kenai Peninsula liquefaction plant capable of producing up to 20 million metric tons of gas per year for export.
The project also includes an 807-mile pipeline with capacity of up to 3.9 Bcf per day, plus a treatment plant at Prudhoe Bay to clean and compress gas for pipeline shipment.
Alaska state officials have pushed for years to develop North Slope gas, which totals 35 Tcf of proven reserves and an additional 200 Tcf of potential resources, according to company estimates. Sen. Lisa Murkowski (R-Alaska) called FERC's action a "capstone moment."
DOE Eyes Water Heater, Motor Standards
The Department of Energy opened proceedings on May 21 to determine whether to revise efficiency standards for consumer water heaters and electric motors.
Current standards for electric, gas- and oil-fired heaters took effect in 2015, while current motor standards took effect in 2016.
A related issue for water heaters is DOE's 2019 proposal of an interpretive rule that could result in separate efficiency standards for condensing and noncondensing residential gas furnaces and commercial water heaters. DOE's proposal, if finalized, would bar standards that in effect would limit the market to condensing appliances, which the proposal said could impose economic hardships.
For motors, technological issues DOE plans to consider are methods to reduce core, friction, windage and stray-load losses.
Senate Dems Knock EPA Air, Enforcement Actions
Democrats on the Senate Environment and Public Works Committee denounced EPA's recent rule and policy changes that they said would increase health risks during the coronavirus pandemic.
"You should be ashamed of yourself," Sen. Ed Markey (D-Mass.) told EPA Administrator Andrew Wheeler at the hearing, after ticking off his objections to rules rolling back tailpipe GHG emissions and fuel-economy standards and dropping a determination that regulating power plant mercury emissions was appropriate and necessary.
Sens. Tammy Duckworth (D-Ill.) and Kirsten Gillibrand (D-N.Y.) criticized EPA's enforcement discretion policy, which has been challenged in court by nine states, including California and Oregon.
Wheeler defended EPA's actions. On the tailpipe rule, he said the regulation would result in more affordable vehicles and encourage new-car purchases. "Older cars are inherently less safe and worse for the environment," he noted.
In a heated exchange with Sen. Chris Van Hollen (D-Md.), Wheeler said dropping the determination on the mercury rule was a response to a Supreme Court order. "Our rule will do nothing to take away those mercury reductions or the technologies that have been deployed," he argued.
On the enforcement discretion policy, Wheeler said, "No one is allowed to increase their emissions, zero," and pointed to EPA's filing of 52 criminal cases and 122 civil enforcement actions since the rule took effect in mid-March.
The policy, he said, would allow facilities to file late reports if closures in connection with the coronavirus pandemic have resulted in unavailability of staff to file them.
Grijalva Seeks GAO Probe of Royalty Cut Requests
Rep. Raúl Grijalva (D-Ariz.), chairman of the House Natural Resources Committee, asked the Government Accountability Office on May 20 to investigate whether the BLM is cutting regulatory corners in approving temporary reductions in oil and gas royalties.
In a letter to Comptroller General Gene Dodaro, Grijalva said he is concerned that BLM has not made findings that projects on federal lands cannot operate economically under current royalties. He criticized what he called BLM's "haste" to approve cuts sought by producers in connection with plunging demand and prices linked to the coronavirus pandemic.
Onshore oil and gas producers pay royalties of 12.5 percent, but a BLM guidance on temporary royalty reductions says the agency could cut producers' rates to as low as 0.5 percent. The guidance requires producers to provide economic analysis showing that leases are uneconomical at current royalty rates but would be economical with royalty cuts. The guidance says BLM state offices will turn royalty-relief applications around in five business days.
Law Professors Urge EPA to Pull Science Rule
One hundred law professors from 70 universities urged EPA Administrator Andrew Wheeler on May 18 to drop the agency's revised proposed rule requiring disclosure of studies used for developing regulations.
"Given the breadth and vagueness of the revised proposal, it is hard to imagine EPA could take, or contemplate taking, any significant regulatory or policy action without being constrained in its ability to consider important scientific research under this rule," the professors said.
EPA's Science Advisory Board on April 24 said "greater clarity is needed" in defining the proposal's requirement to make all data and models underlying "pivotal science" available for independent validation. In addition, the board said EPA's proposal to expand disclosure requirements to include "influential scientific information" behind studies used for developing regulations "could be complex and/or impractical."
Pelosi Backs Bill Extending PPP Deadline
House Speaker Nancy Pelosi (D-Calif.) said May 20 she backs bipartisan legislation to extend beyond eight weeks the period when businesses can use Paycheck Protection Program loan proceeds to cover expenses.
The bill sponsors, Reps. Dean Phillips (D-Minn.) and Chip Roy (R-Texas), said businesses need flexibility to use loan proceeds beyond the current requirement of eight weeks.
On May 18, Pelosi predicted the Senate would be open to negotiating another pandemic relief bill. The $3-trillion bill the House passed May 15 faces dim prospects in the Senate and a White House veto threat.
"The 1,800-page doorstop that Speaker Pelosi dropped last week was appropriately greeted as the legislative equivalent of stand-up comedy," Senate Majority Leader Mitch McConnell (R-Ky.) said on May 18.
In a May 18 interview with CNN's Anderson Cooper, Pelosi said, "They're going to come to the table. They must."
The House bill would direct nearly $1 trillion to state, local, tribal and territorial governments, and appropriate an additional $1.3 billion for the Low-Income Home Energy Assistance Program.
Senators Prod NRC to Speed Reactor Rulemaking
Four senators asked the NRC on May 15 to speed up a planned rulemaking for regulating advanced nuclear reactors.
In a bipartisan letter to NRC Chairman Kristine Svinicki, the senators said the NRC should accelerate completion of a "technology-inclusive" framework for regulating alternatives to conventional, light water-cooled reactors. The 2019 Nuclear Energy Innovation and Modernization Act requires the NRC to finalize the rule by Dec. 31, 2027, but the senators said the deadline "is intended to serve as a backstop, not a target completion date."
The senators said more than 50 advanced designs are under development. Oregon-based NuScale Power has applied for certification of a small modular reactor design expected to wrap up its safety review later this year, and Oklo filed a license application in March to build a 1.5-MW microreactor at Idaho National Laboratory fueled with high-assay, low-enriched uranium.
"Our nation's nuclear innovators are aggressively working to deploy advanced nuclear technologies. It is imperative the NRC's advanced reactor rulemaking keep pace," the senators' letter to Svinicki says.
Senators signing the letter included John Barrasso (R-Wyo.), chairman of the Environment and Public Works Committee; Mike Crapo (R-Idaho); Cory Booker (D-N.J.); and Sheldon Whitehouse (D-R.I.).
FERC Plans COVID-19 Conference
FERC on May 20 scheduled a technical conference for July 8-9 to examine long-range impacts of the coronavirus pandemic on the energy industry.
The conference will be held virtually and will be open to the public.
FERC said the conference will feature panels exploring operational and planning issues; impacts of changes in electricity, gas and oil demand on infrastructure development; and issues involving returns on equity, credit and liquidity.
Utility Pandemic Planning Resource Developed
A resource to help utilities create or update pandemic response plans was released May 14 by DOE, FERC, NERC and the North American Transmission Forum.
"This resource can provide a road map for organizations to create or supplement their existing plans," Mark Lauby, NERC senior vice president and chief engineer, said.
The transmission forum said the resource "has a specific and granular focus on operational aspects" for transmission, but could be adapted for other critical infrastructure.
Brouillette Says Oil Flowing to SPR
Energy Secretary Dan Brouillette said May 21 that DOE has received about one-third of the domestically produced oil contracted for storage in the Strategic Petroleum Reserve and expects to receive the full 23 million barrels by June.
Speaking to DOE's Energy Advisory Board, Brouillette said the department is in the market for an additional 1 million barrels to "provide relief from the acute storage shortage."
"It's very important to see the oil and gas industry come back to pre-pandemic levels," Brouillette told the board.