Top Five Bloomberg BNA Energy and Climate Stories for the Week Ending Feb. 6


The Environmental Protection Agency’s Clean Power Plan and budget proposal, along with wind farms and the Keystone oil pipeline were among the top five Energy and Climate Report stories for the week ending Feb. 6.

EPA Consistent in Authority Interpretation of Clean Air Act, Institute Tells Court

In an amicus brief in support of the EPA—which is covered in this story—the Institute for Policy Integrity told federal appellate judges that the agency has consistently interpreted Section 111(d) of the Clean Air Act that bars the agency from regulating pollutants listed under Section 112 and allows for the regulation of entire source categories.

The agency's consistent and longstanding interpretation of the Clean Air Act is due deference, particularly in the context of the proposed Clean Power Plan, the Institute for Policy Integrity said in the brief filed in the U.S. Court of Appeals for the District of Columbia Circuit.

“During nearly twenty-five years of regulatory history, both Republican and Democratic administrations have consistently interpreted Section 111(d)’s so-called 'Section 112 Exclusion' in ways that would authorize the regulation of greenhouse gases from existing power plants under the Clean Power Plan,” the Institute for Policy Integrity said.

EPA Budget Proposal Includes Funding Boost, Marginal Increase in Staffing Levels

As detailed in this story, President Barack Obama's fiscal year 2016 budget request for the EPA includes its first staffing increase in five years and a $451.8 million increase in funding from the current fiscal year.

The president's proposed spending plan would return EPA funding to levels from before the sequestration cuts were enacted in FY 2013. However, his small proposed increase in personnel would barely make a dent toward restoring staffing levels to the agency's earlier highs.

For the first time in his presidency, Obama's annual budget proposal now heads to a Congress in which both chambers are controlled by Republicans, many of whom are deeply skeptical about his priorities on the environment and other issues.

Court Skepticism, State Backlash Pose Trials for EPA’s Clean Power Plan, Panelists Say

The EPA’s proposed carbon dioxide standards for existing power plants could test the broad deference the courts have given the agency's climate change efforts to date, according to legal experts, whose comments are covered in this story.

The EPA has received unusually broad authority to interpret the Clean Air Act as it moves to address climate change, but an overly broad reading of its powers under Section 111(d) could provoke a backlash among states and test the deference given by judges, panelists said at a forum sponsored by the Law & Economics Center at the George Mason University School of Law.

Roger Martella, a partner at Sidley Austin LLP, said he expects the courts to scrutinize in particular the EPA's claim that it can require the power sector to achieve carbon dioxide emissions reductions from beyond the fenceline of the power plants themselves.

Attorneys Warn of Risks for Wind Farms Under Laws to Protect Eagles, Other Birds

Legal pitfalls awaiting wind energy developers include the possibility of tougher penalties for the killing of eagles and the collateral damage that can come from a guilty plea to criminal charges, attorneys said at an American Law Institute conference, which is covered in this story.

In a couple of prominent recent cases, the Justice Department chose to prosecute utility companies under the Migratory Bird Treaty Act rather than the Bald and Golden Eagle Protection Act, said James Van Nostrand, an associate professor at the West Virginia University College of Law.

Both laws provide criminal as well as civil charges, but the Bald and Golden Eagle Protection Act carries higher penalties, Van Nostrand said.

EPA Keystone Review Links Oil Sands Development to Carbon Emissions Jump

In this story, the EPA said that developing Canadian oil sands would significantly increase greenhouse gases, a conclusion environmental groups said gives President Barack Obama reason to reject the proposed Keystone XL pipeline.

“Until ongoing efforts to reduce greenhouse gas emissions associated with the production of oil sands are more successful and widespread,” developing the crude “represents a significant increase in greenhouse gas emissions,” the EPA said in a letter to the State Department, which is reviewing the project.

The proposed pipeline has pitted Obama's allies in the environmental movement against the U.S. energy industry. Obama has said he will reject TransCanada Corp.'s Keystone if it would lead to a significant increase in carbon pollution.

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