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After months of anticipation, EPA finally issued its greenhouse gas “Tailoring Rule” on Thursday, May 13, 2010.  According to EPA, the rule is necessary to “tailor” the applicability of two Clean Air Act programs – the Prevention of Significant Deterioration (PSD) and Title V Operating Permit programs – to avoid impacting millions of small greenhouse gas (GHG) emitters once the first-ever GHG standards for motor vehicles take effect in 2011.  The final rule differs significantly from EPA’s original proposal (the thresholds are much higher than proposed), but the controversy remains the same:  Can EPA, via regulation, alter the definition of a term defined by statute?

On May 4, 2010, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) vacated and remanded a decision by the Federal Energy Regulatory Commission (“FERC” or the “Commission”) requiring the California Independent System Operator (“CAISO”) to alter its open access transmission tariff to comply with FERC’s station-power netting requirements. 

On May 5, 2010, the United States Energy Information Administration (“EIA”) released a report, “U.S. Carbon Dioxide Emissions in 2009: A Retrospective Review,” showing the largest decrease in energy-related carbon dioxide emissions since EIA started collecting emissions data in 1949.  The seven percent drop (405 million metric tons) in 2009 is a stark contrast to the consistent increase in emissions throughout the 1990s.

After months of anticipation, the United States Environmental Protection Agency (“EPA”) released its 563-page proposal for regulating the disposal and management of coal combustion byproducts (“CCBs”) from coal-fired power plants.  Instead of offering a single approach, EPA requested comments on two options for regulating CCBs.  The first would regulate CCBs as a new “special waste” subject to many of the requirements for hazardous waste, while the second would regulate CCBs in a manner similar to typical solid waste, subject to far fewer and less stringent environmental requirements.  EPA would lead the first approach, the various States the second.  Either of EPA’s proposed options represents a seismic shift toward more comprehensive and expensive requirements for CCBs disposal and management.  And for certain utilities, EPA’s regulatory proposal effectively signals the end of ash pond disposal for CCBs.

On April 27, 2010, the Senate Energy and Natural Resources Committee (“Senate Energy Committee”) considered President Obama’s nomination of Cheryl LeFleur, the former CEO of National Grid’s U.S. electric distribution business, as well as the re-nomination of Commissioner Philip Moeller, to the Federal Energy Regulatory Commission (“FERC”).

On April 23, 2010, FERC accepted a filing by ISO New England Inc. (“ISO-NE”) and the New England Power Pool Participants Committee (“NEPOOL”) to revise market rules for the ISO-NE Forward Capacity Market (“FCM”).  The Commission set several contested issues for paper hearing, but allowed ISO-NE to implement all of the proposed changes for the upcoming auction in August.