OVERVIEWThe United States has produced clean, renewable electricity from hydropower for more than 100 years. Today there are approximately 2,500 domestic dams and pumped-storage facilities that provide roughly 100 gigawatts (“GW”) of electricity. In addition, there are more than 80,000 non-powered dams, i.e., existing structures that could produce power, with the potential capacity of 12 GW. New England’s non-powered dams potential capacity is 243 mega watts (“MW”). Many of the 80,000 non-powered dams could be converted to produce hydropower at relatively low cost and within a relatively short timeframe. See U.S. Department of Energy, An Assessment of Energy Potential at Non-Powered Dams in the United States (2012).
Despite the new administration’s efforts to rollback Obama Era environmental regulations, most businesses in the U.S. are maintaining their commitments to sustainability. According to Lucid’s 2017 Sustainability Outlook Report, only 5% of private companies surveyed expect to decrease their commitment to sustainability programs in 2017, while 74% expect no change and 21% expect an increase in their commitments. Growing concern about climate change have presented companies with the opportunity to lead the way by increasing their sustainability efforts. Major companies are taking the threat of climate change more seriously, and already are developing solutions to reduce their greenhouse gas (GHG) emissions.
President Trump is spearheading a government-wide roll back of Obama Era climate initiatives. The president and his EPA Administrator, Scott Pruitt, have delivered a one-two punch. They both have denied the impact of human activity on climate change, while seeking to resurrect the moribund fossil fuel sector. In March 2017, the President issued a wide-ranging “Energy Independence” Executive Order requiring review and reconsideration of any rule that might burden development of domestic energy sources, particularly oil, gas, coal and nuclear energy. After much drama, in June 2017, President Trump fulfilled a campaign promise to withdraw the United States from the Paris Climate Accord (“Accord”). Moreover, in seeking to implement the new Administration’s energy independence strategy, government departments and agencies are pursuing delay or repeal of regulations aimed at curbing greenhouse gas (“GHG’) emissions, most notably EPA’s targeting for elimination the Clean Power Plan rule (“CPP”).
Green infrastructure refers to, among other things, the utilization of sustainable forestry and agriculture as elements of a cost-effective compliance strategy for meeting the National Pollutant Discharge Elimination System (“NPDES”) permitting requirements, as authorized by the Clean Air Act (“CWA”), and its state counterparts. Natural systems and processes such as constructed wetlands and phytoremediation have long been used as tools for meeting NPDES discharge standards; however, the advent of the Environmental Protection Agency’s (“EPA’s”) more rigorous “Phase II” stormwater management requirements has spurred renewed interest in such systems among a new and more expansive set of permittees.
In a recent blog post, we described the basic statutory and regulatory framework supporting the increasing popularity of mitigation banking. In this update, we offer some additional observations for property owners and other sponsors who may wish to develop a mitigation bank, and identify some of the risks associated with that undertaking.
As seen in the first six months of President Trump’s Administration, the country is on a rollercoaster ride. There is much uncertainty regarding the implementation of new policies and the status of existing programs throughout the government. Nowhere is this sentiment more evident than in the environmental and energy arenas. President Trump is quickly trying to undo the Obama Administration’s programs through executive orders seeking to roll back regulations; the appointment of faithful supporters of deregulatory agenda to key positions; significant budget cuts that substantially reduce agencies’ head counts and defund targeted programs; and the helping hand of a Republican-controlled Congress.
However, achieving this desired goal is easier said than done. President Trump’s objectives may be tempered by legal, procedural and resource constraints, bureaucratic resistance combined with delays in filling key agency decisions, and higher priority domestic agenda items and world events. This article will examine what already has occurred and what may be in store on significant issues involving energy and the environment. It also will highlight aspects of the Trump Administration’s deregulatory efforts and the proposed budgetary impacts.
Out of the gate, the new administration has pursued an aggressive deregulatory agenda. President Trump’s operative goal is to “deconstruct the administrative state.” His administration is building on campaign rhetoric to “roll back” “economy-choking regulations,” and implementing his campaign promise to “Drain the Swamp” by reining in and shrinking the federal bureaucracy. For example, in January 2017, President Trump issued the “2-for-1” Executive Order (EO) on Reducing Regulation and Controlling Regulatory Costs, which specifies that agencies must repeal two existing regulations for every new significant regulatory action. The EO further requires cost balancing between new and repealed regulations and a net cost of zero for any new regulations. In response, Non-Governmental Organizations (NGOs) and others, led by the Natural Resources Defense Council (NRDC), are challenging the validity of the EO in the U.S. District Court for the District of Columbia, arguing that the executive order is “arbitrary, capricious, an abuse of discretion, and not in accordance with law.” In April 2017, the Department of Justice filed a motion to dismiss the complaint on the President’s behalf, and the NGOs moved for summary judgment in May. Attorneys General from 14 states filed a brief in support of the EO. The case is in limbo, as the court has not yet ruled on the parties’ motions.
In February 2017, President Trump issued another EO, on Enforcing the Regulatory Reform Agenda, which requires designation of regulatory reform officers and task forces in all agencies and departments. Each task force must identify “all regulations that are unnecessary, burdensome and harmful to the economy.” In addition to internal deliberations, the task forces have asked stakeholders to help identify troublesome regulations. For example, the Commerce Department sought public comment on government regulations interfering with domestic manufacturing. Of the 168 comments submitted, 79 called out the EPA, the majority of which cited the Clean Air Act (CAA) and Clean Water Act (CWA).
Almost a decade ago, EPA estimated the needed investment in our domestic water and wastewater infrastructure at approximately $105 billion; today it is estimated at over $600 billion. There is no indication thus far that the new administration is committed to reversing the rapid decay of our water infrastructure, or addressing the massive backlog of needed improvements.
This article originally appeared on Recharge.
The Renewable Fuel Standard (RFS) is a regulatory program administered by EPA that requires petroleum-based transportation fuel sold in the U.S. to contain a minimum volume of various categories of biofuels. The program’s mandates are subject to a statutory waiver provision that may be exercised by EPA in the event that market conditions present an obstacle to meeting the minimum volumes. With the new administration’s continuing scrutiny of EPA’s numerous regulatory programs, there has been a great deal of uncertainty regarding the likely fate of the RFS Program.