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

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.

Rising Currents: Re-Visioning New York City Through the Lens of Climate Change

"Rising Currents", a current exhibition at the Museum of Modern Art presents a dazzling synthesis of environmental science, art, architecture and visionary design. The work, by five interdisciplinary teams of design and architectural firms, re-visions the urban landscape of New York City to confront a world altered by rising sea levels and storm surges induced by climate change.

The exhibit space dramatically presents a series of design ideas expressed through display boards, multimedia, physical models, and computerized data visualizations.

The design work is supported by a foundation of detailed scientific analysis, documented in Guy Nordenson's remarkable book, On the Water|Palisade Bay (a product of beautiful design in its own right - kudos to Lizzie Hodges). The teams used the tools of science - fluid dynamic modeling, geographic information systems, quantitative analysis of dynamic systems - to inform environmentally and socially sustainable landscape and infrastructural designs.

The resulting design strategies seek to offer protection to the urbanized spaces of Lower Manhattan and Palisade Bay from rising seas and increased storm intensity and frequency. In some cases, they do so by inviting the water to enter and to accommodate its presence through softened infrastructure and landscapes which "rethink the thresholds of water, land, and city". The design objectives include construction "of an archipelago of islands and reefs along the shallow shoals of the New York–New Jersey Upper Bay to dampen powerful storm currents as well as encourage the development of new estuarial habitats","revitalize the waterfront by designing a broad, porous, 'fingered' coastline which combines tidal marshes, parks, and piers for recreation and community development."

The visualization of these new spaces forces the viewer to re-evaluate the relationship between "natural" forces and human activity which now so dramatically influences them. This is an exhibit for the scientist, the artist, and the concerned citizen in each of us. A detailed exhibition blog provides more information. The exhibit runs through October 11, 2010.

(Exhibition photography © 2010 Armen Elliott Photography, www.armenphotography.com).

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