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On Friday, July 1, 2011, the New York Department of Environmental Conservation (“DEC”) released its draft supplemental generic environmental impact statement (“SGEIS”), a proposal that would grant access to more than 80% of the shale formations within the state of New York.  Notably, the SGEIS would still prohibit drilling in the watersheds that serve New York City and Syracuse, any state owned lands, and all primary and principal aquifers.

On July 7, 2011, the U.S. Environmental Protection Agency (“EPA”) issued new rules requiring power plants in 27 eastern, mid-western, and southern states to cut emissions of nitrogen oxide by 54% and sulfur dioxide by 73% from 2005 levels by the time the rules take full effect in 2014.  The “Cross-State Air Pollution Rule,” which was proposed a year ago as the Clean Air Transport Rule, sets state-specific emissions limits aimed at reducing wind-borne transport of ozone and fine particulate matter across state lines in the East and some state west of the Mississippi.

The EPA on July 1, 2011 issued a final rule deferring for three years application of the Clean Air Act’s Prevention of Significant Deterioration (“PSD”) and Title V permitting requirements to carbon dioxide (“CO2”) emissions from biogenic stationary sources.  EPA and the Science Advisory Board will use the three-year deferral period to conduct an analysis of the impacts of emissions from bioenergy and other biogenic stationary sources prior to a final determination of how such emissions should be regulated.

On June 28, 2011, two business women with the assistance of the Competitive Enterprise Institute (“CEI”) and Americans for Prosperity filed a lawsuit against the state of New York for participation in the Regional Greenhouse Gas Initiative (“RGGI”) program because the interstate compact was never approved by the state legislature.  

On June 20, 2011, the Supreme Court spoke for the second time on climate change. Observing that the Supreme Court “endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change,” a unanimous Court, in a decision written by Justice Ruth Ginsburg, held that Congress, through the U.S. Environmental Protection Agency (“EPA”) – and not a group of states and cities using federal common law – should decide national policy on climate change.

On May 31, 2011, New York Attorney General, Eric Schneiderman, filed an action in the United States District Court for the Eastern District of New York seeking declaratory and injunctive relief against several federal agencies and the United States Army Corps of Engineers (“Army Corps”). In the filing the state sought to compel the agencies to comply with the National Environmental Policy Act (“NEPA”) before authorizing the Delaware River Basin (“basin”) shale natural gas development.