On December 17, 2009, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) released an order (“Enforcement Order”) that authorizes the Secretary of the Commission to issue a Staff’s Preliminary Notice of Violations (“Notice”) after the entity that is subject to an investigation has been given the opportunity to respond to staff’s preliminary findings.  Additionally, the Commission released a Policy Statement where the Office of Enforcement (“OE”) will provide exculpatory evidence to those entities subject to their investigations and respondents in administrative enforcement proceedings. 

On December 17, the Environmental Protection Agency (“EPA”) Administrator Lisa Jackson issued a decision requiring the Kentucky Department of Air Quality (“KDAQ”) to consider whether the proposed Cash Creek Integrated Gasification Combined Cycle (“IGCC”) plant should consider generating electricity with natural gas rather than the syngas produced in the gasification process.  The decision was issued in the context of determining the Best Available Control Technology (“BACT”) requirements in Cash Creek’s Prevention of Significant Deterioration (“PSD”) permit. EPA said that natural gas might be a lower polluting fuel than syngas.

On December 11, 2009, Senator Maria Cantwell (D-WA), along with Senator Susan Collins (R-ME), introduced a “cap and dividend” climate bill called the “Carbon Limits and Energy for America’s Renewal (Clear) Act.”  The Clear Act aims to lower greenhouse gas (“GHG”) emissions 20% from 2005 levels by 2020, 30% by 2035, and 83% by 2050. 

On December 7, 2009, the Environmental Protection Agency (“EPA”) promulgated its long-awaited endangerment finding.  Evidently timed to coincide with the beginning of the international climate change negotiations in Copenhagen, the Agency’s finding states that elevated atmospheric concentrations of six greenhouse gases (“GHGs”) emitted by man – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – are contributing to dangerous climate change. 

On December 3, 2009, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) denied Clipper Windpower Development Company, Inc.’s (“Clipper Windpower”) emergency motion and request for temporary waiver of part of the California Independent System Operator Corporation’s (“CAISO”) Large Generator Interconnection Procedures (“LGIP”).  In its motion, Clipper Windpower argued that the current security deposit requirements within CAISO’s LGIP would force it to post a $7.5 million deposit for upgrades that would cost approximately $4.6 million.

The U.S. Surface Transportation Board (“STB”) on December 1, 2009 instituted a formal proceeding to examine tariff rules established by the BNSF Railway Company (“BNSF”) that limit the amount of coal dust that can be emitted by trains transporting coal over certain railroad lines leaving the Powder River Basin (“PRB”).