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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”).

            On September 25, the United States Environmental Protection Agency Appeals Board (“Appeals Board”) in granting a request by the Environmental Protection Agency (“EPA”) to voluntarily remand to the agency a permit it issued under the Clean Air Act for a major coal-fired power project southwest of Farmington, New Mexico, determined that the developer must consider Integrated Gasification Combined Cycle (“IGCC”) technology as a potential alternative in its analysis of Best Available Control Technology (“BACT”).

          On September 29, 2009, Senators Barbara Boxer (D-CA) and John Kerry (D-MA) released their 821-page draft climate bill, the “Clean Energy Jobs and American Power Act”.  The Boxer Bill’s climate change cap-and-trade provisions parallel the legislation by House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) which the House of Representatives passed in June.  There are, however, significant differences. 

On January 29, Indeck Energy Services Inc. filed a lawsuit in Saratoga County, New York against New York State’s participation in and implementation of the Regional Greenhouse Gas Initiative (“RGGI”) program.  Indeck owns almost 20 electric power plants powered by various types of fuels, including a 128-MW combined cycle natural gas-fired power plant in Corinth, New York.

The first indications of how the Obama Administration will approach the Clean Air Act’s New Source Review (“NSR”) program became apparent this week, as one utility settled its NSR lawsuit and another new lawsuit was filed by the Justice Department. All signs point towards an acceleration in NSR enforcement actions against coal-fired power plants.

The U.S. Senate Committee on Environment and Public Works released a report this month calling for a variety of actions to be taken by the EPA in advance of comprehensive federal legislation regulating greenhouse gas (“GHG”) emissions. The “Report on the Tools Available Under the Clean Air Act to Immediately Reduce Global Warming Pollution” presents the results of the Committee’s September 23, 2008 hearing on the extent of EPA’s current authority with respect to GHG regulation.