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On September 19, 2011, Senator Lisa Murkowski (R-AK) wrote a letter to Federal Regulatory Commission (“FERC” or the “Commission”) Chairman Jon Wellinghoff requesting that he clarify the Commission’s plans to address threats to the nation’s bulk power system as a result of the pending Environmental Protection Agency (“EPA”) regulations.  Senator Murkowski’s September 19th letter builds upon the issues identified in her May 17, 2011 letter, and addresses the August 1, 2011 response of Chairman Wellinghoff.

On September 14, 2011, the House of Representatives Committee on Energy and Commerce Subcommittee on Energy and Power held a hearing to explore the impact of current and pending EPA utility regulations on electric system reliability.  In a somewhat unusual event, all five members of the Federal Energy Regulatory Commission (“FERC” or the “Commission”) testified before the subcommittee about FERC’s role in studying the reliability impact of EPA regulations.

Citing a goal of “reducing regulatory burdens and regulatory uncertainty,” the Obama Administration on September 2 instructed the U.S. Environmental Protection Agency (“EPA”) to withdraw its proposal to strengthen national ambient air quality standards for ozone.  The surprise move was the first time President Obama explicitly and completely rejected an EPA regulation, creating a firestorm of criticism from environmentalists and key Democrats and praise from industry groups and Republicans.

Several attorneys from the Troutman Sanders LLP Atlanta-based Environmental and Natural Resources Practice Group were recently published in the July/August 2011 edition of EEI’s Electric Perspectives magazine regarding Environmental Protection Agency (“EPA”) regulatory inspections.  Co-authored by Douglas Henderson, Margaret Campbell, Hollister Hill and Randy Brogdon, the article outlines the steps that companies need to take to be well-prepared should the EPA show up for a power plant inspection.  The article provides a useful checklist that companies can use to make sure that their plants are inspection-ready as well as a list of questions that will likely be asked by EPA inspectors. 

To the dismay of environmental groups, the U.S. Environmental Protection Agency (“EPA”) on July 13 declined to adopt a long-anticipated new method of setting a combined secondary national ambient air quality standard (“NAAQS”) for nitrogen oxides (“NOx”) and sulfur oxides (“SOx”) recommended by EPA’s Clean Air Scientific Advisory Committee (“CASAC”) and instead proposed a five-year study pilot research effort on the issue.

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 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.