Environmental and Energy Law Blog

Wednesday, June 14, 2017

Comparison of Executive Orders 13771 and 13777 to Texas H.B. 1290

I.  Analysis of Federal Executive Orders (“EO”) 13771 and 13777

A. Executive Order (“EO”) 13771 Summary

1. Overview of EO 13771

On January 30, President Donald Trump issued EO 13771, which requires executive branch agencies to repeal two rules for every one issued. Entitled “Reducing Regulation and Controlling Regulatory Costs,” EO 13771 also directs that all new agency regulations promulgated promulgated during fiscal year 2017 should not impose a net increase in costs.

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Monday, June 12, 2017

The Effects of Unconventional Oil and Gas Production on Groundwater Quality

The U.S. Geological Survey (USGS) recently released a study of the effects of unconventional oil and gas production on the quality of groundwater in Arkansas, Louisiana and Texas. The study found that there is not a significant source of hydrocarbons in the drinking water supply in production areas such as the Eagle Ford, Fayetteville and Haynesville shale formations, although oil and gas wells are known to produce methane and benzene.

This study is unique because it is the first to tie the presence of benzene and methane in drinking water wells to the age of the groundwater.

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Sunday, May 28, 2017

Sun Not Setting on Texas Railroad Commission

The Texas legislature recently passed a bill that extends the mandate of the Texas Railroad Commission until 2029. While this does not come as a surprise, all state agencies are subject to sunset provisions. The Texas Sunset Advisory Commission was established in 1977 to evaluate state agencies to determine whether an agency's are needed and, if so, make recommendations to lawmakers on how it can be run more efficiently.

In this regard, the RRC has been under scrutiny by Sunset over the last year, and a number of recommendations were made to revamp the states oil and gas regulator. One recommendation was to change its name to the Texas Energy Resource Commission to better reflect its mission.

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Tuesday, May 9, 2017

ExxonMobil Ordered to Pay $20 Million for Excess Air Pollution in Houston

A federal judge in Texas recently ordered ExxonMobil to pay nearly $20 million for emitting millions of  pounds of excess air pollution from its Baytown industrial facility 25 miles east of Houston. The sprawling 3,500 acre complex is the site of a refinery, and chemical, olefins and plastics plants (olefins production is used as building blocks for other chemicals, plastics, and fibers).

The Backdrop

In 2010, the energy company was sued by the Sierra Club and Environment Texas, claiming that the Baytown facility emitted more than 8 million pounds of hazardous chemicals and other pollutants, exceeding the limits  allowed by state and federal law and clean air permits. The federal Clean Air Act allows citizens to bring lawsuits for violations of emissions standards or limitations.


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Friday, May 5, 2017

Texas Supreme Court to Review Emission Credit Suit v TCEQ

The Texas Supreme Court on Friday granted review to interior and exterior coating manufacturer AC Interests, which argues that a lower appellate and trial court wrongly dismissed its lawsuit against the Texas Commission on Environmental Quality after it missed the 30-day deadline to notify the agency of the suit.  

In its April 2016 petition for review, AC Interests argues it was an abuse of discretion to dismiss the suit against the state environmental agency, because the 30-day deadline isn't mandatory, but “directory.” The suit — brought regarding AC's right to certain emissions credits from the TCEQ — shouldn't have been dismissed because the agency wasn't “prejudiced by the delay,” and in fact was hand-delivered notice of the suit two days after it was filed in December 2014.  

AC Interests told the court that the Texas Rule of Civil Procedure 91a motion to dismiss — which allows dismissal of claims that have no basis in law or fact — should not have been granted because it “included no basis in AC Interests' pleadings.”  

“In other words, the trial court and Court of Appeals [are] applying the 30-day service of citation rule to AC Interests, while allowing the TCEQ to escape the requirements of proving up the Rule 91a motion, which the TCEQ elected to file,” the petition for review reads.

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Sunday, April 30, 2017

TCEQ Approves Camelot Landfill Expansion

On April 4, The Texas Commission on Environmental Quality (TCEQ) tentatively approved an application to expand the Camelot Landfill by the City of Farmer's Branch.

In October 2016, the Lewisville approved an application by the Farmers Branch to expand the Camelot site, which is located within the city of Lewisville. This came after a four-year legal battle between the two cities over new ordinances  implemented by Lewisville. A final permit is slated to be issued by May 4, provided that a contested hearing or reconsideration is not requested before then.

The landfill was initially permitted in 1979, but the property was not annexed into Lewisville until 1987.

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Friday, March 31, 2017

Trump Rescinds Controversial Water Rule

One of the most controversial environmental regulations enacted during the Obama administration was the EPA and Army Corps of Engineer’s “Clean Water Rule: Definition of 'Waters of the United States’”. The WOTUS rule, as it was commonly known, greatly expanded the government’s control over land that could be even remotely described as a stream or wetland. Now, President Trump has issued an executive order directing the EPA and Army Corps to review and rescind or revise the rule.

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Saturday, March 11, 2017

Texas Railroad Commission Rolls Back Oil and Gas Regulations

The Texas Railroad Commission continues to relieve the oil and gas industry of regulatory burdens. While this initiative was originally launched in the summer of 2016, the regulatory agency plans to lessen reporting requirements and allow for self reporting of violations all in an effort to further reduce compliance costs.

The commissioners argue that eliminating regulations it deems to be unnecessary will help oil and gas companies prioritize crucial rules, such as ones that are designed to protect water resources. They also believe that reducing reporting requirements will lower costs, particularly for smaller firms that operate low-producing wells.

"We want to make sure that those wells and those operators stay in business, and that those wells have an opportunity to produce," said commission Chairwoman Christi Craddick.

Read more . . .

Sunday, February 26, 2017

The NAAQS as a Metric for the Veil of Cooperative Federalism

From 1970, modern environmental law has been a joint venture between the federal government and the states. When Congress enacted the Clean Air Act (CAA) of 1970 it crafted the model for most of the pollution control legislation enacted in the ensuing decades. Referred to as cooperative federalism the concept was to delegate authority to a federal agency, such as the Environmental Protection Agency (EPA), to enact standards to achieve clean air goals.

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Sunday, February 26, 2017

Taking the Clean Air Act Into the 21st Century and Beyond: A Proposal to Streamline Regulation to Improve U.S. Economic Competiveness

EPA regulation, in including CAA GHG regulations, as well as potential cap-and-trade legislation, will negatively affect U.S. industry over time. Included in this article is an example CAA impact analysis on the U.S. refining industry. Additionally, over-regulation is hurting efficiency and will hurt U.S. competitiveness overseas.

One way to remove excess regulation that is gaining attention from some politicians is to abolish the EPA entirely. Abolishing the EPA would create many new challenges that would likely take many years of legislative maneuvering and litigation to sort out.

This paper proposes a practical, alternate solution: the simplification and modernization of the CAA. By streamlining and simplifying facets of the CAA, the modernized CAA would look more like a framework, easily adaptable to our world’s ever-changing technological and environmental landscape.

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Monday, February 20, 2017

Texas Supreme Court Set to Hear Mineral Trespass Case

The Texas Supreme Court has agreed to hear a dispute to determine whether an oil producer can drill through a mineral lease without a lessee's permission. The case involves a dispute between Lightning Oil and E&P Onshore LLC, a subsidiary of Anadarko Petroleum Corp.

Anadarko intends to drill horizontally through property on which Lightning owns rights to oil and gas to reach a nearby oil and gas reserve. Lightning claims that the proposed drilling would trespass through its  mineral estate, however, Anadarko argues that the mineral estate lies in the subsurface, and that it has obtained permission to drill from the surface owner.

Lightning is seeking to overturn a lower appellate court ruling in favor of Anadarko, claiming that decision ignored its legally valid mineral estate and effectively removed real property status from mineral estates.

Read more . . .

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