Elliott & Elliott Launches New PennEast Pipeline Documents Public Archive

Elliott & Elliott announces the launch of a new publicly-available Dropbox archive of documents relating to the proposed PennEast natural gas pipeline.  The archive, which will be continuously updated, includes documents from the Federal Energy Regulatory Commission (FERC) docket for the PennEast pipeline project (PF15-1), the Delaware River Basin Commission (DRBC), and other agencies and organizations.  The archive also includes guides to accessing electronic information at FERC Online, including instructions on subscribing to a docket, and the FERC "citizen guide", An Interstate Natural Gas Facility on My Land:  What Do I Need to Know?  The Dropbox archive is available at: https://www.dropbox.com/sh/fwhs6dcjtmrptq9/AABmUxo8I0N4z_n_l4J-WJ8Ea?dl=0

(Please be patient for large files to load.)

We welcome additional submissions of documents and other information on the #PennEast pipeline for the archive.  Submissions can be sent to: pipeline@elliott-lawyers.com

National Parks Conservation Coalition Seeks Injunction to Prevent Construction of Susquehanna-Roseland 500 kV Transmission Line

 A coalition of national, regional and local conservation groups has filed a motion for a preliminary injunction in federal court to stop construction of the Susquehanna-Roseland transmission line through three popular national parks – the Delaware Water Gap National Recreation Area, the Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail—while the court considers claims that the power line will cause irreversible ecological and scenic damage.  A copy of the press release announcing the court filing can be read here. A copy of the Motion for Preliminary Injunction and legal memorandum in support of the motion is available here.

The press release states:

At stake is nothing less than the Delaware Water Gap’s spellbinding views, pristine environment, and diverse wildlife that include bald eagles, peregrine falcons, and black bears. The Delaware Water Gap National Recreation Area was named a Top 10 most-photogenic national park for fall foliage, and is the eighth most visited national park unit in the country. The Delaware River is one of the cleanest rivers in the nation. The Appalachian Trail, completed 75 years ago, and designated as the nation’s first national scenic trail in 1968, is enjoyed by 2-3 million people each year. Together, these national parks offer some of the very best outdoor recreational opportunities for those living in the Mid-Atlantic region. “Countless public dollars and volunteer hours have gone into protecting special places like the Delaware Water Gap,” explained Mark Zakutansky, Mid-Atlantic Policy Manager for the Appalachian Mountain Club. “Allowing irreplaceable scenic vistas, trails, and wildlife habitat to be permanently damaged violates the Park Service’s mission and sends the wrong message about the value of our national treasures. We have to halt this construction, at least for now, so the court can review the case.”

We previously posted on the environmental impact statement for the Susquehanna-Roseland transmission line on September 1, 2012 and onDecember 3, 2011.

National Park Service Issues Final Environmental Statement on PP&L Susquehanna-Roseland Transmission Line Through Delaware Water Gap National Recreation Area

The National Park Service has published its Final Environmental Statement (FES) on the Susquehanna-Roseland Transmission Line through the Delaware Water Gap National Recreation Area. The FES effectively approves the utilities' proposed route of a new 500kV line across the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail in Pennsylvania and New Jersey.

The final environmental statement confirms NPS's previous determination that the "no action" alternative is the environmentally-prefereable alternative, but determined that the utilities' proposed route - among six alternatives evaluated - is its "preferred alternative", assuming the incorporation of "critical mitigation measures."  The "preferred alternative" is the one “which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors.”

NPS made this determination despite finding that the proposed route "would cause significant adverse impacts to geologic resources; wetlands; vegetation; landscape connectivity, wildlife habitat, and wildlife; special-status species; rare and unique communities; archeological resources; historic structures; cultural landscapes; socioeconomics; infrastructure, access and circulation; visual resources; visitor use and experience; wild and scenic rivers; and park operations."

Specifically, among other impacts, the alternative will cause:

• conversion of 20.28 acres of forested wetlands to scrub shrub and/or emergent wetlands
• adverse impacts to 15.22 acres of Exceptional Value Wetlands and/or rare and unique wetlands
• clearing of 240 acres of vegetation, including 129 acres of mature forest
• adverse impacts to multiple archaeological sites, at least 17 historic structures, 18 cultural landscapes, including the Appalachian National Scenic Trail.

The FES articulates NPS's intention to require mitigation of adverse impacts where possible:

The NPS expects to conclude consultation by including in any ROD a binding commitment to the mitigation measures disclosed in this EIS, as required by 36 CFR § 1508.8. Mitigation measures specific to the impact topics, where applicable, are presented in appendix F. The NPS would also establish mechanisms to ensure that all mitigation obligations are met, mitigation measures are monitored for effectiveness, and unsuccessful mitigation is quickly remedied. In instances where impacts cannot be avoided and mitigation is not feasible, compensation for resources lost or degraded through project construction, operation, and maintenance would be required. Examples of items that cannot be remedied through mitigation include impacts that degrade the scenic and other intrinsic values of the parks or impacts that result in the loss of recreational use and visitor enjoyment.

The Final Environmental Impact Statement is available here.

Note: This is an update to our prior posts on this topic of January 21, 2010 and December 3, 2011.

Pa. Appeals Court Strikes Down Act 13 Natural Gas Drilling Law as Unconstitutional

In a 4-3 decision issued today in Robinson Township, et al. v. Commonwealth of Pennsylvania (284 MD 2012), the Commonwealth Court struck down as unconstitutional Pennsylvania's "Act 13", a law that provided that natural gas well drilling, waste pits and pipelines be allowed in every zoning district, including residential districts.  In its 54-page opinion, the Court stated: Because the changes required by [the law, at 58 Pa. C.S. §3304] do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.  

Because 58 Pa. C.S. §3304 requires all oil and gas operations in all zoning districts, including residential districts, as a matter of law, we hold that 58 Pa. C.S. §3304 violates substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications. Accordingly we grant Petitioners’ Motion for Summary Relief, declare 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoin the Commonwealth from enforcing it.

This decision may have impacts which go beyond natural gas drilling. In particular, other statutory provisions purport to require municipalities to allow timbering in every municipal zoning district. We'll offer some further thoughts on the implications of this decision in a future blog. In the meantime, those interested in reading the opinion can find it on the Pennsylvania Commonwealth Court's website here.

Congressional Research Services issues CRS Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues"

CongressionalResearchService

On January 23, 2012, the Congressional Research Services issued a Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues."   The entire report (PDF, 29 pp.) can be found here.  The report analyzes a variety of legal issues, including: the sources of Presidential and State Department legal authority regarding cross-border facilities, reconciling the Executive and Legislative roles related to foreign commerce and judicial interpretations of those roles,  constitutional concerns related to potential action by States related to the pipeline, preemption issues, the National Environmental Policy Act (NEPA)  process for permitting of the pipeline, and the availability of judicial review of actions taken under Executive Order 13337.  The Report to Congress provides a typically thorough review of the issues and is required reading for persons interested in the legal issues arising from the Keystone XL proposal.   The Summary of the Report states, in part: "New legislative activity with respect to the permitting of border-crossing facilities, a subject previously handled exclusively by the executive branch, has triggered inquiries as to whether this raises constitutional issues related to the jurisdiction of the two branches over such facilities. Additionally, as states have begun to contemplate taking action with respect to the pipeline siting, some have questioned whether state siting of a pipeline is preempted by federal law. Others argue that states dictating the route of the pipeline violates the dormant Commerce Clause of the Constitution which, among other things, prohibits one state from acting to protect its own interests to the detriment of other states. This report reviews those legal issues. First, it suggests that legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional “foreign affairs” authority. Next, it observes generally that state oversight of pipeline siting decisions does not appear to violate existing federal law or the Constitution. Finally, the report suggests that State Department’s implementation of the existing authority to issue presidential permits appears to allow for judicial review of its National Environmental Policy Act determinations."

A companion report from CRS focusing on policy issues associated with the proposal, "Keystone XL Pipeline Project: Key Issues" (CRS Report R41668), is also available here.

The Perils of Natural Gas Well Drilling / "Fracking" Leases in Pennsylvania's Marcellus Shale

The New York Times' exposé of the problems with natural gas/hydraulic fracturing continues with an illuminating article, "Learning Too Late of the Perils in Gas Well Leases."  As the article says, "Americans have signed millions of leases allowing companies to drill for oil and natural gas on their land in recent years. But some of these landowners — often in rural areas, and eager for quick payouts — are finding out too late what is, and what is not, in the fine print."   While some landowners have been paid significant sums under these leases, others are discovering they are paying a costly price for "permitting industrial activity in their backyard."  Problems caused by the fine print in such leases can include: (1) the refusal by the gas company to compensate for damages to water supplies, livestock or crops; (2) noise and light pollution, 24 hours/7 days a week; (3) losing control over the use of the property, as most leases grant gas companies broad rights to determine where they can cut down trees, store chemicals, build roads and drill wells; (4) industrial waste disposal on the property; (5) enduring indefinite extensions without additional landowner approval. Another article in the series, "Rush to Drill for Natural Gas Creates Conflicts With Mortgages" , describes the mortgage problems that such leases can create.  Some banks refuse to issue mortgages on properties subject to these leases.  Many mortgages require permission from the lender before they sign a lease; signing without permission can put a homeowner in instant default. Many gas well drilling leases will permit the gas company to operate in ways that violate rules in the mortgage.

An archive of more than 1,000 Pennsylvania gas leases can be viewed online on the New York Times website here. The archive can be used to compare lease terms and evaluate costs and benefits. An archive of documents relating to the problems with mortgages caused by gas leases is available here.

According to John Quigley, former Secretary of Pennsylvania's Department of Conservation and Natural Resources, "at least seven million acres -- 25 percent of the state’s land area -- has been leased for drilling. About 4,000 Marcellus wells have been drilled in Pennsylvania so far, and over the next several decades, tens of thousands -- maybe hundreds of thousands -- of wells will be drilled."

Landowners who have signed -- or who are asked to sign -- natural gas well drilling leases should be aware of these potential problems, and have the leases and other real estate documents reviewed by counsel.

National Park Service Issues Draft Environmental Impact Statement on Susquehanna-Roseland 500kV Transmission Line

Update: The National Park Service has now published the Final Environmental Statement on the project. See our September 1, 2012 post for updated information.

The National Park Service has published its Draft Environmental Impact Statement (DEIS) for construction and right-of-way permit as requested by Pennsylvania Power and Light Electric Utilities Corporations (PPL) and Public Service Electric and Gas Company (PSE&G), in connection with their proposed Susquehanna-Roseland transmission line.  The project is more fully described in our previous post of January 21, 2010.

The National Park Service found that PPL's proposed route and all alternatives that would cross the Delaware Water Gap National Recreation Area would have adverse environmental impacts.  The DEIS concludes that the environmentally preferred alternative is "no action": to deny the request for the right of way and construction permit.

A public comment period including public meetings has started and will end on January 31, 2012. Comments can be submitted electronically at the NPS Planning, Environment and Public Comment page.

Three public hearings (6:00-9:00pm) will be held:

Tuesday, January 24, 2012 (snow date 1/31 if required) Fernwood Hotel and Resort U.S. 209 Bushkill, PA 18324

Wednesday, January 25, 2012 (snow date 2/1 if required) Stroudsmoor Country Inn - Ridgecrest RD#4 Stroudsmoor Road Stroudsburg, PA 18360

Thursday, January 26, 2012 (snow date 2/2 if required) Farmstead Golf and Country Club 88 Lawrence Road Lafayette, NJ 07848

EPA Orders Coal-Fired Portland Generating Station to Reduce Sulfur Dioxide Interstate Air Pollution

Portland Generating Station

The U.S. Environmental Protection Agency has ordered the coal-fired Portland Generating Station in Northampton County, PA to put an end to its interstate air pollution. In a 95-page decision issued on October 31, 2011, EPA ordered the plant, operated by GenOn REMA LLC (GenOn Energy), to reduce its sulfur dioxide emissions by 81 percent within three years.  The decision also establishes interim emission rate limits which the plant must meet within one year. The decision constitutes final rulemaking, and adds a new rule at 40 C.F.R. Section 52.2039. It has been reported that this is the first EPA rulemaking directed at a single pollution source. 

The EPA found that emissions of sulfur dioxide (SO2) from the Portland plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The decision provides a detailed analysis of EPA's authority under Section 126 of the Clean Air Act to provide a remedy to downwind states subjected to pollution from out-of-state sources.  It also reviews the emissions data, air pollution dispersion modeling, available control technologies, and other technical issues supporting its decision.

UPDATE: The EPA decison was published in the November 7, 2011 Federal Register (76 Fed. Reg. 69052, et seq.) and is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-07/pdf/2011-28816.pdf.

EcoWatch: New National Environmental News Service

EcoWatch has launched its new national news service in partnership with Waterkeeper Alliance, the first media source to focus exclusively on news from more than 700 environmental organizations across the country. EcoWatch offers original content in its Insights column from national leaders in the environmental movement. It will provide nationwide and state-by-state environmental news, and content in five major areas: water, air, food, energy and biodiversity.

“The current assault on America’s environmental laws, like the Clean Water Act, creates a pressing need to educate and engage people to protect our infrastructure, the air we breathe, the water we drink, to provide our children with the same opportunities for dignity and enrichment as our parents gave us,” said Robert F. Kennedy, Jr. founder and president of Waterkeeper Alliance. “This website encourages people to be part of the solution and engage in democracy.”

The site is well-designed and content-rich, offering objective information and deep insight from voices we need to hear.

National Research Council Issues New Report: "America's Climate Choices"

The National Research Council released today a new report, "America's Climate Choices", the final volume of the "America's Climate Choices" suite of activities. The report examines the nation’s options for responding to the risks posed by climate change. The report concludes that it is imprudent to further delay actions to substantially reduce greenhouse emissions, and offers a series of recommendations for national policy.  The primary recommendation is for the nation to substantially reduce greenhouse gas emissions, with the "most effective strategy" to "begin ramping down emissions as soon as possible". The NAS recommendations also include mobilization for adaptation to climate change, including adaptation planning and implementation "at all levels of society".  

A PDF of the entire report can be downloaded for personal use.  It will make sobering reading.

Chesapeake Bay Foundation and Pennsylvania Environmental Council Issue New Proposal to Reform Pennsylvania Laws on Natural Gas Drilling

The Chesapeake Bay Foundation (CBF) and the Pennsylvania Environmental Foundation (PEC) have submitted a legislative proposal to the Corbett administration and state lawmakers "designed to help ensure safe and responsible Marcellus Shale drilling and gas extraction in Pennsylvania." The proposal sets forth detailed amendments to the Pennsylvania Oil and Gas Act  to confer additional authority to regulate and manage deep shale and unconventional drilling techniques that were not contemplated when the law was enacted.  The proposal was provided to Governor Corbett’s Marcellus Shale Commission and members of the Pennsylvania General Assembly.

The proposed amendments are based on the findings of a PEC report issued last year called “Developing the Marcellus Shale” which outline a series of environmental policy and planning recommendations for unconventional shale gas development.  The PEC/CBF press release states: "These amendments are aimed at restoring public confidence in the industry’s ability and commitment to responsible drilling and environmental compliance. The proposal includes 50 specific amendments to the Act which reform the permit process to allow for greater stakeholder input and set clear environmental protection standards for the hydraulic fracturing process and the infrastructure that should be required for shale gas extraction."

The organizations propose to split the gas well drilling permit process into two phases that require enhanced collection and review of site-specific data prior to approval. The proposal also calls for a number of tighter restrictions in the Pennsylvania Oil and Gas Act.

A copy of the press release can be found here. A PDF of the complete, detailed legislative proposal is here.

Energy Department To Revamp Hydraulic Fracturing Rules for Natural Gas Extraction

The New York Times reports that the Department of Energy, acting on orders from President Obama, has established an expert panel to revise safety and environmental standards for hydraulic fracturing (so-called "fracking"). Hydraulic fracturing involves high-pressure injection of fluids into underground shale formations to break open natural gas pockets as a technique for extraction of natural gas from deep wells. The Obama Administration's new energy policy, announced on March 30, 2011 at Georgetown University, significantly relies on increased natural gas production. Steven Chu, Energy Secretary, has requested the expert panel to issue immediate recommendations within 90 days, and a more comprehensive set of safety and environmental standards within three months.  The expert panel chairman is John Deutch, a former director of the Central Intelligence Agency and deputy defense secretary, and current director of Cheniere Energy, which operates a natural gas terminal and pipelines.

Hydraulic fracturing pours millions of gallons of toxic chemicals into the ground and into wastewater treatment systems, which in some cases are not designed to treat all of the contaminants. The New York Times article refers to "numerous documented cases" in which fracking fluids leaked into aquifers and contaminated drinking water.

Other members of the panel include former PADEP secretary Kathleen McGinty; Stephen Holditch, chairman of the department of petroleum engineering at Texas A&M University; Fred Krupp, president of the Environmental Defense Fund; Susan Tierney, former assistant secretary of energy for policy and Massachusetts secretary of environmental affairs; Daniel Yergin, chairman of I. H. S. Cambridge Energy Research Associates and author of “The Prize: The Epic Quest for Oil, Money and Power,” and Mark Zoback, a Stanford geophysics professor.

EPA Proposes Finding Northampton County PA Coal Power Plant Causes SO2 Air Pollution Violations in NJ

Portland Coal Power Plant

UPDATE

: On October 31, 2011 the EPA Issued its final response to the New Jersey Petition, finding that the coal-fired Portland Generating Station in Upper Mount Bethel Township, PA is emitting air pollutants in violation of the interstate transport provisions of the Clean Air Act. EPA found that the plant's SO2 emissions significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The EPA is establishing emission limitations and compliance schedules to ensure that the plant will eliminate its significant contribution to SO2 pollution in New Jersey. See

our post of November 4, 2011

.

The U.S. EPA is proposing to formally find that the coal-fired Portland Generating Station in Upper Mount Bethel Township, Northampton County, Pennsylvania, is causing interstate air pollution in violation of the federal Clean Air Act.  It also proposes to impose emission limitations to force substantial reductions of sulfur dioxide emissions from the plant.

In its "Response to Petition from New Jersey Regarding SO2 Emissions from the Portland Generating Station", EPA proposes to issue a finding that emissions of sulfur dioxide (SO2) from the Portland Plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. This finding is proposed in response to a petition submitted by the State of New Jersey Department of Environmental Protection (NJDEP) on September 17, 2010. EPA is also proposing emission limitations and compliance schedules to significantly reduce SO2 emissions from the plant.

According to the NJDEP petition and the proposed EPA finding,emissions from the Portland plant are causing SO2 concentrations far in excess of the NAAQS of 196 micrograms/m3.  EPA states that these violations require an

81 percent reduction

in emissions from the Portland plant to reduce SO2 concentrations below the NAAQS.

EPA will receive comments on this proposed finding, which must be received on or before May 27, 2011. Submit comments, identified by Docket ID No. EPA-HQ-OAR-2011-0081, online at 

http://www.regulations.gov

, by email to: a-and-r-docket@epa.gov. Attention Docket ID No. EPA-HQ-OAR-2011-0081, or mail to: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2011-0081, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC  20460.

A public hearing will be held on April 27, 2011, in the Pequest Trout Hatchery and Natural Resources Education Center located in Oxford, Warren County, New Jersey 07863.

EPA Issues Final Rule "Tailoring" Permit Requirements for Greenhouse Gas Emissions

On May 13, 2010 EPA took one more regulatory action to address climate change and greenhouse gas (GHG) emissions, by issuing its final rule setting thresholds for GHG emissions that define when permits are required under the major EPA programs for stationary sources. These include the New Source Review Prevention of Significant Deterioration (PSD) and title V Operating Permit programs.

First Step (January 2, 2011–June 30, 2011). In the first step of this three-step rule, for the first 18 months, only sources currently subject to the PSD permitting program (i.e., those that are newly-constructed or modified in a way that significantly increases emissions of a pollutant other than GHGs) would be subject to permitting requirements for their GHG emissions under PSD. Projects with GHG increases of 75,000 tpy or more of total GHG, on a CO2e basis, would need to determine the Best Available Control Technology (BACT) for their GHG emissions. Similarly for the operating permit program, only sources currently subject to the program (i.e., newly constructed or existing major sources for a pollutant other than GHGs) would be subject to title V requirements for GHG.

Second Step (July 1, 2011 to June 30, 2013). Next, PSD permit requirements will cover for the first time new construction projects that emit GHG emissions of at least 100,000 tpy even if they do not exceed the permitting thresholds for any other pollutant. Modifications at existing facilities that increase GHG emissions by at least 75,000 tpy will be subject to permitting requirements, even if they do not significantly increase emissions of any other pollutant.  Similarly, operating permit requirements will apply to sources based on their GHG emissions even if they would not apply based on emissions of any other pollutant. Facilities that emit at least 100,000 tpy CO2e will be subject to title V permit requirements.  First-time Title V permittees are likely to be solid waste landfills and industrial manufacturers.

Third Step.  EPA commits to another rulemaking, to begin in 2011 and conclude no later than July 1, 2012. That action will take comment on an additional step for phasing in GHG permitting, and may discuss whether certain smaller sources can be permanently excluded from permitting. EPA also plans to explore a range of opportunities to reduce permit burdens and to streamline permitting actions.

A copy of the EPA fact sheet is available at: http://www.epa.gov/nsr/documents/20100413fs.pdf

A copy of the final rule (515 pp.) is available at: http://www.epa.gov/nsr/documents/20100413final.pdf

U.S. Chamber of Commerce, Coal & Gas Industries Attack EPA's Greenhouse Gas Endangerment Finding

In a predictable legal free-for-all, industry groups joined the state of Texas and the U.S. Chamber of Commerce late last week in filing challenges to EPA's "endangerment" finding for greenhouse gas emissions under the Clean AIr Act, while sixteen states and several environmental groups joined the fray by seeking to intervene in the industry challenges. The U.S. Court of Appeals for the District of Columbia Circuit will hear the cases.  All of the various petitions for review will almost certainly be consolidated. Background:  On December 7, 2009, the EPA Administrator signed two distinct findings regarding greenhouse gases under section 202(a) of the Clean Air Act:

• Endangerment Finding: The Administrator found that the current and projected concentrations of the six key well-mixed greenhouse gases--carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)--in the atmosphere threaten the public health and welfare of current and future generations.
• Cause or Contribute Finding: The Administrator found that the combined emissions of these well-mixed greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas pollution which threatens public health and welfare.

These findings do not themselves impose any requirements on industry or other entities  See EPA's background materials supporting its greenhouse gas endangerment findings under section 202 of the Clean Air Act.

The industry challengers include Ohio Coal Association, the Utility Air Regulatory Group, the Portland Cement Association, and the Competitive Enterprise Institute, along with a coalition that includes the National Association of Manufacturers (NAM), the American Petroleum Institute, the Corn Refiners Association, the National Association of Home Builders, the National Petrochemical and Refiners Association, and the Western States Petroleum Association. Ten other petitions were filed by the American Iron and Steel Institute, the American Farm Bureau Federation, the National Mining Association, Peabody Energy, the Southeastern Legal Foundation on behalf of 13 House Republicans and business associations, and the so-called "Coalition for Responsible Regulation".

The state and environmental groups seeking to intervene to support EPA's endangerment finding include a coalition of 16 states and New York City, and groups including the Natural Resources Defense Council, Environmental Defense Fund, Sierra Club and the National Wildlife Federation.

In a statement reported by the New York Times, Environmental Defense Fund Texas regional director Jim Marston said: "The lawsuit filed by Governor Perry is asking the Environmental Protection Agency to ignore the Supreme Court's decision in U.S. vs. Massachusetts. Their action invokes memories of a sad time in Texas history from the '50s, when Texas politicians sought to nullify decisions of the U.S. Supreme Court. Not only is it legally unsound, it puts Texas on the side of the 1950s economy, against the clean energy economy of the future."

National Park Service to Evaluate 500kV Transmission Line to Cross Appalachian Trail and Delaware Water Gap National Recreation Area

SECOND UPDATE: The National Park Service has now published the Final Environmental Statement on the project. See our September 1, 2012 post for updated information.

UPDATE:  The National Park Service has published its Draft Environmental Impact Statement on the proposed action. It concludes that the preferred environmental alternative is the "no action" alternative. The public comment period on the DEIS is open until January 31, 2012.

 The National Park Service is deciding whether to allow the construction of a new 500 kV electric transmission line to cross the Appalachian National Scenic Trail and the Delaware Water Gap National Recreation Area.  Today (January 21, 2010) it issued its Notice of Intent to Prepare an Environmental Impact Statement (EIS) for a construction and right-of-way permit requested from the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail, in connection with the Susquehanna to Roseland 500kV Transmission Line. 

You can view the Federal Register notice here. The public participation and public scoping process under the National Environmental Policy Act commences with the Federal Register publication today. The public can comment on the project's purpose, need, objectives, preliminary alternatives, mitigation and other issues by submitting comments through the NPS project website at http://parkplanning.nps.gov/dewa/.

The project proposes to expand upon an existing right-of-way which contains a single 230,000 volt (230kV) electric transmission line by replacing the existing towers with new, taller tower structures and adding an additional 500,000 volt (500kV) transmission line. The request would necessitate widening the existing ROW and constructing new access roads. The expanded line and new towers will impact three units of the National Park Service: the Delaware Water Gap National Recreation Area; the Middle Delaware National Scenic and Recreational River and National Recreation Water Trail; and the Appalachian National Scenic Trail (AT). The NPS is preparing an Environmental Impact Statement (EIS) to evaluate the permit request.

Additional information, including the NPS internal scoping meeting report, is available from the National Park Service Planning, Environment and Public Comment page for the project.

NRDC Offers Updated Pennsylvania Renewable Energy Projects Mapping & Profile

The Natural Resources Defense Council (NRDC) has posted (December 5) new and updated information on Pennsylvania renewable energy projects. See NRDC Switchboard.  In its web-page "Renewable Energy for America - Harvesting the Benefits of Homegrown, Renewable Energy", NRDC provides an interactive mapping tool showing the location, developer and energy production of existing and proposed renewable energy projects throughout the United States.NRDC sums up Pennsylvania's renewable energy status: "Though Pennsylvania has one of the nation's largest coal-mining industries and second-largest nuclear industry, parts of the state are in the national vanguard of clean, green energy use." In its Pennsylvania Renewable Energy Profile, NRDC offers details about Pennsylvania's existing renewal energy facilities and potential future expansion, including wind energy, solar power, biomass fuels and cellulosic ethanol, and biogas (methane) production.  

Funding and economic incentives for Pennsylvania renewable energy projects. Perhaps most importantly, the Pennsylvania profile also includes information about project funding sources and economic incentives for renewable energy projects in the state. For example, businesses, non-profits, universities, and municipalities can apply to the Pennsylvania Energy Development Authority (PEDA) for assistance with capital costs on a variety of advanced energy projects, including solar energy, wind, biogas and biomass. Awards are made once a year. 

The Database of State Incentives for Renewables and Efficiency lists federal, state and local government incentives for renewable energy projects in Pennsylvania. The database includes project grant and loan application details, including eligibility criteria, loan and grant terms, application guidelines and other information useful to applicants.  Many of these Pennsylvania programs are administered through the Department of Community and Economic Development. You can download the Pennsylvania DCED Alternative and Clean Energy Program Guidelines by clicking the link below: 

Download Alternative And Clean Energy Guidelines (Nov. 2009)

Pa. Supreme Court Gives Victory to Mercury-Emitting Coal Power Plants; Invalidates State DEP Mercury Emission Limits

The Pennsylvania Supreme Court handed a victory this week to coal-fired electric generating facilities when it invalidated Pennsylvania's regulations limiting their emission of mercury.  In its December 23, 2009 decision, the Court found that the Pa. regulations could not stand after the legal basis for the rule - a federal EPA decision which provided for state regulation of mercury emissions from oil and coal-fired electric generating units - was invalidated by the U.S. Court of Appeals for the D.C. Circuit.Background. In 2005, the U.S. Environmental Protection Agency (“EPA”) issued a final "Delisting Rule" which removed oil- and coal-fired electric generating units (EGUs) from the list of mercury pollution sources regulated under the hazardous air pollutants provisions of section 112 of the Clean Air Act. (70 Fed. Reg. 15994-01 (03/29/2005)). However, the EPA did not abolish regulation of mercury emissions from oil- and coal-fired EGUs. Rather, it shifted the responsibility for the mechanics of the regulation to the states. To accomplish this shifting to the states, the EPA promulgated the Clean Air Mercury Rule (“CAMR”). 70 Fed. Reg. 28606 (5/18/2005). CAMR was predicated on the Delisting Rule and it established a mercury emission budget for each state and required each state to develop a program to regulate the mercury emissions from oil- and coal-fired EGUs.  Pennsylvania opted to develop a mercury regulation program that would keep emissions within the mercury budget set by the EPA and developed the PA Mercury Rule as the Pa. state response to CAMR. The PA Mercury Rule required, among other things, coal fired power plants to reduce their mercury emissions by 80% by January 2010.

EPA's decision to delist coal-fired electric generating stations from section 112's list of mercury sources was challenged in federal court. The D.C. Circuit Court of Appeals ultimately invalidated that delisting decision because EPA failed to follow the required delisting procedures. New Jersey v. Environmental Protection Agency, 517 F.3d 574 (D.C. Cir. 2008). The effect of that D.C. Circuit Court of Appeals decision was that EGUs remained listed as mercury sources under federal law, Section 112. The court also found that once the Delisting Rule was declared invalid, CAMR no longer had a legal basis and it vacated CAMR as well.

Because under the Pa. Air Pollution Control Act, DEP generally cannot regulate hazardous air pollutants which are federally regulated under Section 112 of the Clean Air Act, and the very basis for the Pa. Mercury Rule was EPA's delisting decision, the Pa. Supreme Court held that once the EPA delisting decision was invalidated by the D.C. Circuit Court of Appeals, the Pennsylvania state rule could not stand. 

Case: PPL Generation, LLC, et al., v. Commonwealth of Pennsylvania, No, 7 MAP 2009 (Pa. Supreme Court, December 23, 2009