Blog Archive

Governor Murphy Signs Clean Energy LegislationMay 25, 2018

On Wednesday, Governor Phil Murphy signed bills related to the environmental and energy pledges he made during his campaign. The Governor signed A-3723, a Renewable Energy Bill, which provides new renewable energy standards, implementation of energy efficiency measures along with reforms related to the State’s solar programs and reinvigorating programs related to major offshore wind development. The Governor also signed into law S-2313 establishing a Zero Emissions Certificate program in order to maintain New Jersey’s nuclear power supply. In addition, the Governor signed an executive order to update New Jersey’s Master Energy Plan to provide for 100% clean energy by 2050. The Master Energy Plan is directed to be completed by June 1, 2019 and will incorporate the provisions of the new legislation.

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Christie Administration Seeks a Stay in EPA’s Clean Power PlanSeptember 3, 2015

New Jersey Department of Environmental Protection (“DEP”) Commissioner, Bob Martin, sent a letter to United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy formally requesting EPA to stay and reconsider its Clean Power Plan as it relates to the State of New Jersey.  The Christie Administration argues that the Clean Power Plan is an overreach by the federal government and is particularly unfair to the State of New Jersey, a state that has already made significant reductions to carbon emissions.  The Obama Administration announced the Clean Power Plan, under Section 111(d) of the Clean Air Act, on August 3, 2015, stating that it is a historic and important step in reducing carbon pollution from power plants in an effort to take action on climate change.  The Clean Power Plan establishes national standards to address carbon pollution from power plants.  The EPA proposed the rule in June of 2014 and it received more than 4.3 million public comments. 

The Christie Administration contends that New Jersey has already reduced its carbon dioxide emissions from its power sector by 33 percent, which is more than the 32 percent reduction goal that EPA set for the entire nation by 2030 under the Clean Power Plan.  Commissioner Martin, in his letter to Commissioner McCarthy, states that “consistent with our 2011 Energy Master Plan, New Jersey has already promoted cleaner and more efficient energy.”  In addition to the provisions under the Energy Master Plan, the Christie Administration is committed to driving down energy costs, promoting a diverse portfolio of clean, sustainable in-state power, promoting energy efficiency and conservation, capitalizing on new technologies and achieving a robust renewable energy portfolio standard.

Attorneys general for fifteen other states petitioned a federal court in Washington last month to block the new rules for power plants.  They requested a ruling by September 8th, one year before the states need to submit compliance plans to EPA.

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EPA Issues New Definition of Solid Waste RuleFebruary 2, 2015

The Final Rule regarding the Definition of Solid Waste was published in the January 13, 2015 Federal Register.  On December 10, 2014, the United States Environmental Protection Agency (“EPA”) announced a final rule revising the 2008 definition of Solid Waste.  Among the changes, the rule addresses regulatory gaps in the 2008 rule by requiring off-site recycling at a facility with a RCRA permit or verified recycler variance.  This will provide both EPA and the states with the ability to verify that these facilities have the proper personnel, adequate financial assurance and proper emergency response preparedness.  The variances will also allow the public to participate and be aware of recycling facilities in their neighborhoods.  The final rule revises the definition of legitimate recycling and it includes a targeted remanufacturing exclusion for certain higher-value hazardous spent solvents, which allows manufacturers to reduce the use of virgin solvents resulting in energy conservation and reduced greenhouse gas emissions.

The final rule is effective July 13, 2015.

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Obama Administration Announces $15 Million for Community Solar DevelopmentMay 2, 2014

The United States Department of Energy ("DOE") announced that it will offer $15 million to help communities develop multi-year solar plans to install affordable solar electricity for homes and businesses.  The Obama Administration has set a goal of doubling renewable energy generation by 2020.  The DOE's goal for its Solar Market Pathways funding opportunity is to help communities develop solar plans that focus on cutting red tape and building stronger public-private partnerships to deploy commercial-scale solar.  Through its program, the DOE hopes communities will establish innovative financing mechanisms and launch creative community-based initiatives, such as shared solar programs.  Shared solar programs will provide families and businesses with the opportunity to own, lease or purchase electricity from a share of a larger solar project, reducing the costs and allowing consumers access to renewable power.

The Solar Market Pathways program is part of the DOE's SunShot Initiative.  The SunShot Initiative was introduced in February of 2011 and since then the Solar Office of DOE has helped fund 350 projects in the areas of photovoltaics, concentrating solar power, soft costs and system integration.

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Proposed New Legislation Would Expand the Brownfields Cleanup ProgramMarch 18, 2013

Senator Frank Lautenberg of New Jersey recently co-sponsored legislation to authorize $250 million per year to expand the Brownfields Cleanup Program through 2016. As provided by Senator Lautenberg: the Brownfields Utilization, Investment, and Local Development (BUILD) ACT of 2013 would improve the existing grant process by increasing the limit for cleanup grants and expanding grant liability for certain publicly owned sited and non-profit organizations. The bill would authorize the Environmental Protection Agency (EPA) to make multi-purpose grants, which provide greater certainty for long-term project financing. In addition, the legislation identifies opportunities for waterfront properties and brownfield sites appropriate for clean energy development, allows grant recipients to collect administrative costs, and provides technical assistance to small, rural, and disadvantaged communities.

Senators James Inhofe, Tom Udall, and Michael Crap co-sponsored the bipartisan bill. Through the Brownfields Program, the EPA has provided approximately $1.5 billion in grants, which have leveraged $19.2 billion in additional investment. The Brownfields Program has assessed more than 20,000 properties and created more than 86,000 jobs nationwide. The EPA estimates that there are approximately 450,000 brownfields sites in the United States. The New Jersey Department of Environmental Protection estimates there are 10,000 brownfields sites in New Jersey.

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NY Court Rejects Challenge to Spectra Energy's Right to Construct Natural Gas Pipeline in NY-NJFebruary 8, 2013

Spectra Energy has overcome another hurdle in its pursuit to construct a $1.2 billion dollar extension to its natural gas pipeline in New Jersey, crossing into New York. Spectra Energy's pipeline project has been going through the regulatory approval process for several years. The 16-mile pipeline is an expansion of the existing Texas Eastern Transmission and Algonquin Gas Transmission intended to bring additional supplies of natural gas to New Jersey and New York, including Manhattan. The New York State Court dismissed an environmental group's challenge to the pipeline because federal law preempts state and local review of licensing of interstate pipelines.

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Hot Topic for 2013...FrackingDecember 26, 2012

With President Obama's re-election, we may see an increase in the activities of the United States Environmental Protection Agency ("EPA"), particularly on energy issues, in 2013. One issue that has already become a hot topic and will continue to be in the news in 2013 is hydraulic fracturing ("fracking"). Fracking is the process whereby fractures are created in rocks and rock formations by injecting fluid into cracks in the rocks. The fracturing allows oil and gas to be released and then extracted. Fracking is very controversial and has come to the forefront everywhere from Hollywood to politics. A movie set to open later this month starring Matt Damon addresses the issue of fracking and the debate between the job opportunities and energy resources it offers versus the potential harm to both people and the environment.

On the political side, seven states plan to sue the United States Environmental Protection Agency ("EPA") for failing to address climate change, including enactment of guidelines of regulations for fracking. New Jersey's Governor vetoed an anti-fracking bill earlier this year, which would have prevented any fracking material from being transported across the state. New York recently pushed back its issuance of final regulations on fracking, under fire from environment groups and others, to continue to study the issue and the effect it could have on people and the environment. Earlier this month, three New York Assembly members requested that the state's environmental conservation commissioner withdraw the recently proposed regulations.

To be continued in 2013.....

Happy New Year!!

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New Jersey Governor Signs Solar LegislationJuly 25, 2012

On July 23, 2012, New Jersey Governor Chris Christie signed into law, S-1925, bipartisan legislation, which will increase the percentage of total power that utilities must derive from solar energy from two percent (2%) to four percent (4%) by 2028. The Division of Rate Counsel estimates that the law will save ratepayers almost $1.1 billion over the next 15 years. This legislation meets one of the goals of the Governor's 2011 Energy Master Plan.

Suppliers and providers of electricity are required to purchase Solar Renewable Energy Certificates (SRECs) in an amount that satisfies the annual RPS requirement. Thus, demand for SRECs is set by the Renewable Portfolio Standard ("RPS"). Under the bill, the 15-year RPS schedule is changed from a fixed megawatt requirement each year to a percentage of overall energy usage in New Jersey, ensuring that the level of solar obligation rises and falls with overall energy demand, which can vary due to economic factors as well as the success of energy efficiency and conservation programs.

According to the Office of the Governor, New Jersey "installed more solar capacity in the first quarter of 2012 than any other state, and led the nation in solar installations on commercial and industrial properties in 2011."

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Final New Jersey Energy Master Plan ReleasedDecember 15, 2011

The Christie Administration issued its final new Jersey Energy Master Plan (EMP) on December 6, 2011. The Renewable Portfolio Standard (RPS) is a state requirement that mandates the increased production of energy from renewable energy sources, such as wind, solar, biomass and geothermal, to meet a specified goal. The EMP sets a 22.5% RPS target for 2021. In addition, the Administration hopes to achieve 70% of the state's electric needs from "clean" energy sources by 2030.

In its Executive Summary, it provides for the Administration's goals for the EMP:

1.  Drive down the cost of energy for all customers;
2.  Promote a diverse portfolio of new, clean, in-state generation;
3.  Reward energy efficiency and energy conservation and reduce peak demand;
4.  Capitalize on emerging technologies for transportation and power production; and
5.  maintain support for the renewable energy portfolio standard of 22.5% of energy from renewable sources by 2021.

The EMP sets forth specific initiatives to achieve these goals. The Administration seeks to expand in-state electricity resources, create and implement cost-effective renewable resources, promote cost-effective conservation and energy efficiency, and support the development of innovative energy technologies.

The final EMP varies little from the draft that was issued in June 2011, which was folllowed by public hearings. The EMP has been met with criticism as it decreased the RPS target from 30% to 22.5% by 2021, something the Administration believes is more attainable. Additionally, the Administration includes nuclear, natural gas and hydroelectric facilities as sources of "clean" energy.

The EMP in its entirety can be found on the State of New Jersey's website at

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U.S. Supreme Court to hear Two Environmental Cases in 2011-2012 TermSeptember 28, 2011

PPL Montana, LLC v. State of Montana
PPL Montana, LLC (PPL) owns and operates dams licensed by the federal government by the Federal Energy Regulatory Commission (FERC) pursuant to its authority under the Federal Power Act (FPA) on the Missouri, Madison and Clark Fork rivers. PPL filed a declaratory judgment action in state court on November 12, 2004 against the State of Montana (State) contesting the State's ability to seek compensation for PPL's licenses user of its dams. The State filed a counterclaim and maintains that is has title to the riverbeds and has since Montana acquired statehood under the "equal footing doctrine", and that PPL is required to pay for the use of the riverbeds. Under this doctrine, at the time a new state entered the Union, the federal government passed trust ownership of the navigable waters and the underlying riverbeds to the state. Both parties presented experts and thousands of pages of evidence regarding the use of the rivers and whether they were "navigable" at the time that Montana entered the Union, in 1889. The trial court awarded damages in the amount of more than $40 million in back lease payments and future lease payments for the PPL to continue to use the waters.

The Montana Supreme Court upheld the lower court's decision that (1) title to the riverbeds of the Missouri, Clark Fork and Madison rivers transferred to Montana when it became a state in 1889: (2) the lower court's calculation of damages in the amount of $40,956,180 was supported by the facts; and (3) that the Land Board is responsible for the terms of any future lease.

The U.S. Supreme Court is asked to decide (1) if the constitutional test for determining whether a section of a river is navigable for title purposes is to require a trial court to determine, based on evidence, that the section of the river was navigable at the time the state joined the Union, or can the court deem the entire river navigable based upon present day recreational use: and (2) if a project licensed under the FPA, which requires economic analysis and state input, and for which easements have been obtained and substantial funds paid to private parties and the federal government having been told the riverbeds are owned by those parties, can the State retroactively claim title and impose millions of dollars of damages for back rent and future obligations?

Oral argument is scheduled for December 2, 2011.

Sackett, et al. v. EPA

Chantall and Michael Sackett own 0.63 acres of undeveloped land in Idaho, near Priet Lake. In 2007, the Sacketts filled in about one-half acre of the property with dirt and rock in preparation to build a house. On November 26, 2007, the United States Environmental Protection Agency (EPA) issued a compliance order alleging that the land is a wetland and is subject to the Clean Water Act (CWA) and that the Sacketts violated the CWA by filling in the land without first obtaining a permit. EPA ordered that the Sacketts remove the fill and restore the land or face civil penalties up to $32,500 per day of violation or administrative penalties up to $11,000 per day of violation. The Sacketts sought a hearing with EPA, but the request was denied. The Sacketts filed an action with the United States District Court for the District of Idaho arguing that the compliance order (1) was arbitrary and capricious under the Administrative Power Act (APA); (2) was issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) was issued on an "any information available" basis which is unconstitutionally vague.

The District Court granted the EPA's motion to dismiss for subject matter jurisdiction and it concluded that the CWA precluded judicial review of compliance orders before the EPA has stated an enforcement action in federal court. The Sacketts appealed to the Circuit Court. The Ninth Circuit Court of Appeals held that the language and structure of the CWA is intended to preclude pre-enforcement of judicial review of administrative compliance orders. The Ninth Circuit also held that the CWA provides that penalties for noncompliance with a compliance order be assessed only after the EPA proves, in district court, and according to traditional rules of evidence and burdens of proof, that the defendants violated the CWA in the manner alleged in the compliance order.

The U.S. Supreme Court is asked to decide (1) whether petitioners can seek pre-enforcement judicial review of the administrative compliance order pursuant to the APA and, (2) if not, does the petitioners' inability to seek pre-enforcement judicial review of the administrative compliance order violate their rights under the Due Process Clause?

Oral argument has not been scheduled yet.

The United States Supreme Court's 2011-2012 term opens on Monday, October 3, 2011.

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Home Energy Score Pilot Program BeginsFriday, November 12, 2010

Vice President Joe Biden and Secretary of Energy Steven Chu announced the launch of the Home Energy Score pilot program on November 9, 2010. The Home Energy Score will offer homeowners information regarding their homes' energy efficiency by preparing a report and a home energy score between 1 and 10, comparing their homes' use of energy with others in their region. As part of the voluntary program, certified and trained contractors will walk through a home and utilize an assessment to evaluate a home and provide useful, inexpensive recommendations to homeowners and to prospective purchasers on how to make a home more energy-efficient. The report will also provide homewoners with recommendations to reduce their energy costs. The program is initially being tested with local governments, utilities and non-profits in ten pilot communities across the country. The pilot program should be completed in the spring of 2011, and the Department of Energy hopes to launch the Home Energy Score nationally next year.

If the Home Energy Score is successful, it is something that could be used throughout the country by prospective purchasers in real estate negotiations. As energy efficiency becomes more and more important in this country, sellers may be asked to make energy-efficient upgrades to their homes and the Home Energy Score could prove to be an inexpensive and useful tool in this process.

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