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The new administration at the Environmental Protection Action has taken these actions:

  • Reconsidering the New Methane Rules.

On June 3, 2016, pursuant to the Clean Air Act (CAA), EPA promulgated amendments to the existing oil and gas New Source Performance Standards, 40 C.F.R. Part 60, Subpart 0000, and established new methane emissions standards for the these sources, 40 C.F.R. Part 60, Subpart 0000a, with respect to volatile organic compounds (VOC) and greenhouse gas emissions. The new 0000a standards are designed to reduce pollutant greenhouse gases (GHG) emissions from oil and natural gas production, processing, transmission and storage activities and operations.

On April 18, responding to petitions for reconsideration filed by industry groups and trade associations, EPA determined that these petitions raised an important issue that had not been considered earlier regarding the monitoring of fugitive emissions. As a result, EPA will convene a new proceeding to reconsider these requirements, and stayed the compliance date for fugitive emissions monitoring for 90 days. EPA will also consider the impact of these rules on low–production wells.

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In Federal Contractors Beware DHS Proposes Robust Cybersecurity Procurement Regulation to Safeguard Controlled Unclassified Information (CUI), my colleagues and I discuss the proposed Department of Homeland Security (DHS) procurement regulation to safeguard CUI and its internal inconsistencies/ambiguities.

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Yesterday, the Environmental Protection Agency published a notice in the Federal Register seeking public comments on any “regulations that may be appropriate for repeal, replacement, or modification.”

This notice invites an unprecedented level of review over EPA’s entire existing body of regulations. The notice aims to implement the President’s February 24 Executive Order 13777 Enforcing the Regulatory Reform Agenda “to alleviate unnecessary regulatory burdens.” The notice describes those regulations vulnerable to overhaul as those that:

(a)    Eliminate jobs, or inhibit job creation;

(b)   Are outdated, unnecessary, or ineffective;

(c)    Impose costs that exceed benefits;

(d)   Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies.

The comment period closes only 30 days out, on May 15, 2017. Contact your counsel for more information or to request assistance in commenting.

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As any builder will tell you, it is impossible to know with certainty the exact amount a project is going to cost. Variables affecting the cost run the gamut from labor and material costs to delays for unforeseen conditions, weather or other causes. The longer a project is expected to take, the more uncertain the project’s costs become. For this reason, contingencies are included in budgets by all parties involved: owners, contractors, subcontractors and, occasionally, lenders. Ideally, these contingencies will allow the project to absorb delays and other unexpected events without the owner being forced to contribute additional equity (and “balance the loan”) at the time. The owner will desire maximum flexibility over the re-allocation of the contingency(ies) to line items that will then be funded by the lender—while the lender will want to “control” the use of contingency line items to the extent possible.

With this in mind, let’s look at some of the competing motivations at play and “typical” loan agreement provisions regarding the use (or re-allocation) of contingency(ies) to other line items in the Project Budget.

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On April 11, the U.S. Court of Appeals for the District of Columbia Circuit reversed the lower court and held, owlin a unanimous opinion, that the American Forest Resource Council has standing to challenge the U.S. Fish and Wildlife Service’s 2012 designation of 9.5 million acres of federal forest lands as a protected critical habitat for the northern spotted owl. The case is Carpenters Industrial Council, et al., v. Zinke.

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On April 11, the U.S. Court of Appeals for the District of Columbia Circuit vacated thecow-300x234 Environmental Protection Agency’s December 18, 2008 CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms rule (Rule) that created hazardous substance reporting exemptions for all farms, except large animal raising operations known as concentrated animal feeding operations (CAFO). The case is Waterkeeper Alliance, et al. v. EPA. The case was argued in December 2016, or almost eight years after the rule was promulgated.

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For builders working in California—already one of the most expensive states for new construction—a new bill winding its way through the legislature could add yet more costs. For this reason, Senate Bill 71 (SB 71) should be on the radar of developers and construction companies that do business in California. SB 71 would require all “solar-ready buildings” constructed on or after January 1, 2018, to include a solar electric or solar thermal system on their roofs. “Solar-ready buildings” include single-family residences in subdivisions with 10 or more single-family residences with an approved subdivision map; low-rise multi-family buildings; high-rise multi-family buildings and hotel/motel occupancies; and all other non-residential buildings. The solar systems would be required to be installed during construction because, as the bill explains, installing systems at that stage is more cost effective.

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The U.S. District Court for the Western District of Oklahoma has dismissed the Sierra Club’s Resource Conservation and Recovery Act (RCRA) citizen suit, filed against several oil and gas producers seeking declaratory and injunctive relief. The District Court invoked the Burford abstention doctrine (Burford v. Sun Oil Co.) and primary jurisdiction doctrine to step away from this case, dismissing the RCRA citizen suit without prejudice. The case is Sierra Club v. Chesapeake Operating, LLC, et al.

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On April 4, the U.S. Court of Appeals for the Third Circuit decided the case of Mirabella v. Villard, et al., a civil rights case brought under 42 U.S.C. § 1983, alleging, inter alia, violations of their First Amendment rights by local officials. Although the Court of Appeals concluded that the Mirabellas adequately alleged both a retaliation claim and a violation of their right to petition, it concluded that the rights allegedly violated “were not clearly established for the purpose of qualified immunity.” The Court of Appeal reversed the District Court’s ruling on the local officials motion to dismiss with instruction to enter judgment in their favor.

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The U.S. Court of Appeals for the Fourth Circuit has decided the case of North Carolina v. Alcoa Power Generating, Inc. The Court of Appeals affirmed, in a 2 to 1 ruling, the decision of the U.S. District Court for the Eastern District of North Carolina that a relevant segment of North Carolina’s Yadkin River—on which Alcoa Power Generating, Inc. (Alcoa) has constructed and operated for many years hydroelectric dams to supply power to its neighboring aluminum smelter—was not “navigable” at the time of North Carolina’ statehood (1789). Consequently, the State could not claim title to this segment as an aspect of state sovereignty.

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