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On June 25, 2013, President Barack Obama released a sweeping climate plan (“Plan”) using his authority to both address greenhouse gas (“GHG”) emissions and to prepare for the impacts of climate change.  The plan, which consists of a wide variety of executive actions, has three key pillars: (1) cut carbon pollution in America; (2) prepare the United States for the impacts of climate change; and (3) lead international efforts to combat global climate change.

On April 15, the Internal Revenue Service (the “IRS”) released notice 2013-29 (the “Notice”) which provides guidance on what constitutes “beginning of construction” for purposes of the American Taxpayer Relief Act of 2012 (“ATRA”).  A copy of the Notice can be found here.  Under ATRA, a qualified facility (as described in section 45(d) of the Internal Revenue Code) will be eligible to receive the renewable electricity production tax credit (“PTC”) under section 45 of the Code, or the energy investment tax credit (“ITC”) under section 48 of the Code in lieu of the PTC, if construction of such facility begins before January 1, 2014.

On April 3, 2013, the U.S. Senate Committee on Energy and Natural Resources announced it will hold three forums on natural gas issues.  According to the committee, the forums are designed to build on a February 2013 hearing and are scheduled to explore opportunities and challenges within the natural gas industry.

On January 24, 2013, the United States Court of Appeals for the D.C. Circuit refused to rehear a decision of a three-judge panel of the court that overturned EPA’s Cross-State Air Pollution Rule (“CSAPR”).  CSAPR addressed the interstate transport of pollutants emitted by electric generating units (“EGUs”) located in the eastern two-thirds of the country.  The panel decision in the EME Homer City v. EPA case, issued on August 21, 2012, found that EPA had misinterpreted underlying statutory requirements.

On January 11, 2013, the Department of Energy (“DOE”) released the “Strategy for the Management and Disposal of Used Nuclear Fuel and High-Level Radioactive Waste” (“Strategy”). The Strategy builds on the recommendations of the Blue Ribbon Commission on America’s Nuclear Future (“BRC”) and includes plans for a pilot interim storage facility, a full-scale interim storage facility, and a geologic repository (see February 5, 2010 edition of the WER).

On Friday, January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency (“EPA”) must rework how it implements standards for fine particulates emitted by power plants, boilers and motor vehicles.  In making its determination, the court rejected the EPA’s argument that it is required under the Clean Air Act to use a less stringent regime of implementation for standards related to fine particulates than it does for standards related to less dangerous, coarser particles.  As a result, implementation of the two fine particulate matter regulations will likely become more rigorous, and more stringent controls will apply to power plants located in communities which are not achieving the relevant clean air standards.

On December 14, 2012, the Environmental Protection Agency (“EPA”) announced that it is strengthening the annual standard for fine particulate matter (PM2.5) from 15 ug/m3 to 12 ug/m3.  With the more stringent standard, EPA expects to designate as many as 66 counties to be in violation, 19 of which will be new to the list of counties that do not meet federal PM standards.  The official “nonattainment” designations will not be effective until early 2015; states will have a year to submit recommended designations, and EPA will have another year to act on those recommendations.  Because PM2.5 levels are expected to continue declining over the next few years in most areas, the final tally of nonattainment counties could be lower.

On Demember 14, 2012, The United States Court of Appeals for the D.C. Circuit dismissed an extraordinary appeal of proposed EPA New Source Performance Standards (“NSPS”) for greenhouse gas emissions from new coal-fueled electric generating units.  The appeal of the proposed standards was taken by a group of companies seeking to develop new coal-fueled generation and by the Utility Air Regulatory Group.

Late in the day on Friday, November 16, 2012, the Environmental Protection Agency (“EPA”) issued a proposal to reconsider maximum achievable control technology standards for hazardous air pollutant emissions from new electric generating units (referred to as “UMACT”). EPA’s previously-issued standards for new units, promulgated as a part of EPA’s Mercury and Air Toxics Standards rule, had been criticized by a coalition of new unit developers as unattainable. One of the new unit developers asked EPA to reconsider the standards, as did the trade association of pollution control equipment vendors, which also told EPA that its members could not issue guarantees that the standards could be met.