Environmental Law Update – Spring 2019

Emerging Contaminants: MassDEP has proposed reportable concentrations and clean-up standards for perfluoroalkyl compounds in the Massachusetts Contingency Plan, 310 CMR 40.0000 et seq. (MCP).  Written comments must be filed by July 19, 2019.  The final regulations are scheduled for the Fall, 2019.

Climate Change: Following up on an April, 2018 policy announcement, the EPA proposes to adopt regulations that would treat carbon dioxide emissions from power plants using managed forest biomass as carbon neutral.  

Renewable Energy: The Massachusetts Department of Energy Resources (DOER) has proposed regulations to revise the Class I and Class II Renewable Energy Portfolio Standard (RPS) regulations, including revisions to the efficiency standard for certain woody biomass to qualify for Class 1 Renewable Energy Certificates (RECs).

Solid Waste:  During 2019, the MassDEP will continue to hold Solid Waste Advisory Committee meetings to arrive at a draft 2020 Solid Waste Master Plan.  Subcommittees that will also be meeting include the source reduction, organics and C&D Subcommittees. In this connection, in February MSW Consultants provided the MassDEP with its final Massachusetts Materials Management Capacity Study which is intended to inform the development of the 2020 Master Plan.

NPDES: In April, the EPA issued an Interpretative Statement on Application of Clean Water Act National Pollutant Discharge Elimination System to Releases of Pollutants from a Point Source to Groundwater, in which the Agency concludes “that the CWA is best read as excluding all releases of pollutants from a point source to groundwater from NPDES program coverage. regardless of a hydrologic connection between the groundwater and jurisdictional surface water.” It will remain to be seen whether or not this interpretation will quell the conflict among the federal Circuits over the issue, highlighted last September when the Massachusetts District Court dismissed a citizen’s suit alleging violations of the NPDES program by Casella Waste Systems’ discharge of contamination to the groundwater at the Southbridge landfill in Toxics Action Center, et. al. v. Casella Waste Systems, Inc., et. al.  Hopefully, the United States Supreme Court will answer the question of NPDES jurisdiction when it takes up County of Maui, HI v. Hawaii Wildlife Fund on appeal from a Ninth Circuit decision extending jurisdiction to discharges to groundwater. 

The Northeast Ocean Plan

The Northeast Ocean Plan (the “Plan”) was developed pursuant to Executive Order 13547 “Stewardship of the Ocean, Our Coasts, and the Great Lakes” (July 19, 2010), which adopted the White House Council on Environmental Quality  “Final Recommendations of the Interagency Ocean Policy Task Force,” and established the National Ocean Policy.  On December 1, 2016, the National Ocean Council (whose Director is Massachusetts’ own Deerin Babb-Brott) certified that the Plan is consistent with the National Ocean Policy.  The Plan is advisory and for use with the companion Northeast Ocean Data Portal, which contains thousands of maps of the components of the marine ecosystem and human activities.  It is hoped the Plan and Data Portal will enhance agency decision-making, encourage the compatibility of ocean uses, and promote healthy ocean ecosystems.

All six New England States (even landlocked Vermont) are signatories.  State and federal agencies will consider the relevant data and information in the Plan to inform decision-making regarding activities such as:

  • Offshore wind energy leasing and development
  • Wave and ocean current energy facilities
  • Offshore oil and gas planning, leasing and development
  • Offshore sand extraction
  • LNG facilities
  • Disposal of dredged material
  • Navigational impacts (aquaculture, cables, pipelines)

The States pledge to use the Plan “which may depend in part on federal agencies’ commitment to the Plan and timely update of its data and information.”  Given the Trump administration’s anti-science mindset, the order to approve the Dakota Access shale oil and Keystone XL natural gas pipelines without full environmental reviews, the promise to cut federal agencies’ budgets, and to repeal, replace or modify environmental regulations (including those related to the ocean), the Plan and Portal may be useful to applicants and state agencies, but may gather dust until the Presidential pendulum swings back toward environmental protection.

Renewables Corner – Summer 2016

In August, Tom Mackie attended a signing ceremony at which Governor Baker signed the long awaited  Act Relative to Energy Diversity (H. 4568).  The result of significant compromise between house and senate conferees and their surrogates, the energy bill promises to significantly change the Massachusetts energy landscape by requiring  utilities to competitively solicit and contract for approximately 1,200 megawatts (MW)  of clean energy generation – base load hydropower, onshore wind and solar supported by hydropower, standalone onshore wind, solar, or other Class I renewable resources and allows for the procurement of approximately 1,600MW of offshore wind.

Also in August, in ENGIE Gas & LNG LLC v. Department of Public Utilities the SJC struck down a proposal by the DOER, approved by the DPU, to allow electric distribution companies to enter into contracts for natural gas pipeline capacity and pass along the cost to electric rate payers.  Rejecting the Baker administration’s efforts to ensure the development of additional pipeline capacity in Massachusetts, the proposed ruling was opposed by environmental groups, such as the Conservation Law Foundation.  Although the case came down on strictly statutory interpretation grounds, the result will make it more difficult/costly for pipeline companies to finance new natural gas pipelines, which may ultimately make renewable energy resources more competitive in the market.

In December, Congress extended the 30% solar investment tax credit and wind production tax credit for five years.  Unlike prior iterations of the credits, however, the amount of tax credit declines over time.  Go to the  NC Clean Energy Technology Center DSIRE website for a useful description of these tax credits and the fate of others like combined heat and power and biomass.

On April 11 Governor Baker signed legislation to increase the solar net metering caps.  Identified by the Northeast Clean Energy Council as an “interim solution” the increase in net metering caps is expected to be exhausted by new solar projects within a year.  As part of the grand compromise that led to the Governor’s signature, although net metering caps will be raised, the amount to be paid for net metered power is going down for new projects.  The net metering cap is raised by 3% for both public and private projects but the amount to be paid is reduced by 40% for new projects except small residential and municipal projects which will continue to receive 100% of the retail electric price.  At the same time the Department of Energy Resources filed emergency regulations to bridge the gap between the currently fully subscribed 1600 MW solar renewable energy credit program, (SREC II) to a to be developed future program.  Under those regulations, generally speaking solar projects that will be completed by January 8, 2017, will be entitled to receive SREC II benefits even though the 1600 MW cap for the SREC II program has been reached.

Although not “renewable energy” it is relevant that Kinder Morgan has abandoned its plans for a gas pipeline.  Low gas prices and increased supply are considered a potential threat to renewable energy resources and to achieving greenhouse gas reduction goals. According to the Conservation Law Foundation’s Greg Cunningham, “The project as proposed was flawed from the outset.”  According to the Boston Globe, among the winners are Danish wind power developer, DONG, and members of Massachusetts Clean Energy Partnership, including developers of other renewable energy resources.

In Hughes v. Talen Energy Marketing, the United States Supreme Court issued a very narrow ruling that avoids calling into question state renewable energy incentive programs such as renewable portfolio standards under the Federal Power Act and exclusive jurisdiction of the Federal Energy Regulatory Commission over wholesale electric markets.  In a scenario too complicated to describe here, Maryland’s DPU passed a rule to encourage the development of new in-state generating capacity that had an effect on interstate wholesale electric markets.  Although the challenge to Maryland’s program had the potential to derail many state renewable energy incentive programs, the Supreme Court made clear that it was only invalidating Maryland’s program.

What the United States Supreme Court giveth with one hand, it taketh away with the other.  In February 2016, the Supreme Court put President Obama’s Clean Power Plan on hold.  Some of the important goals of the CPP are to improve coal plant efficiency and deploy renewable energy.  It also requires all fifty states to adopt plans to reduce greenhouse gas emissions, similar to the RGGI program.  While EPA Administrator Gina McCarthy remains “optimistic” about the fate of the CPP, | all of the work states would have been required to perform to demonstrate compliance is seriously in doubt under the Court’s ruling.

And while we are on the subject of giving and taking away, Governor Baker’s Clean Energy and Climate Plan for 2020 does just that.  It gives an optimistic projection that the Commonwealth is on track to achieve 25% GHG reductions 2020, while taking away any real confidence that the goal can be achieved with domestic resource by placing heavy emphasis on the future import of Canadian Hydropower.


Renewables Corner – Fall 2015

The Massachusetts Department of Energy Resources (DOER) is preparing draft regulations to include renewable thermal in the Massachusetts Alternative Portfolio Standard (APS) pursuant to Chapter 251 of the Acts of 2014.

The MassDEP has still not finalized its evaluation of wind turbine noise, which some wind energy advocates claim is stymying development of land based wind energy. In 2012 the MassDEP issued a Wind Turbine Health Impact Study  that stimulated a spirited discussion over the health effects of wind turbines including significant public comments and additional information. In response, in 2013 MassDEP convened the Wind Turbine Noise Technical Advisory Group (WNTAG) to provide advice on recommended changes to MassDEP noise regulations and/or policies as they apply to wind turbine noise. In July 2013, the MassDEP issued a Discussion Document entitled Potential Revisions to MassDEP Noise Regulations and Policy to Address Wind Turbine Noise.  Some in the field believe that the wind noise measurement techniques discussed by the MassDEP would inappropriately overstate the noise impact of turbines.  Unfortunately, since the Baker Administration has come into office, the MassDEP has not reconvened the WNTAG.

In May, the Baker-Polito Administration announced the launch of a new $10 million initiative aimed at making Massachusetts a national leader in energy storage. The Energy Storage Initiative (ESI) includes a $10 million commitment from the Department of Energy Resources (DOER) and a two-part study from DOER and the Massachusetts Clean Energy Center (MassCEC) to analyze opportunities to support Commonwealth storage companies, as well as develop policy options to encourage energy storage deployment.

In October, Entergy announced that Pilgrim Nuclear Power Station will close by June 1, 2019. Coupled with the planned shut down of large coal fired generating stations in the Commonwealth, this could open up the market for more renewable power.  However, it is likely that renewable energy producers in Massachusetts will face competition from Canadian hydro-power and new imports of natural gas, if the current Administration’s policies succeed.

Over the summer, Governor Charlie Baker filed two pieces of energy legislation that, if passed, will affect the renewable energy market.  In July, he filed An Act Relative to Energy Sector Compliance with the Global Warming Solutions Act, to diversify the state’s energy portfolio through the procurement of cost-effective, hydropower generation.  Among other things, the legislation will permit Massachusetts utilities to collaborate with other New England states, including Connecticut and Rhode Island, in the procurement of hydroelectric resources. Critics question whether a large amount of Canadian hydropower will crowd out other Massachusetts based renewable energy sources.  Ironically, others criticize republican Governor Baker’s proposal as a massive “re-regulation” of the deregulated energy market place and a “subsidy” for Canadian hydro-power.  In August, Governor Baker filed  An Act Relative to a Long-Term, Sustainable Solar Industry  to raise the private and public net metering caps two percent each, to six and seven percent, respectively. This represents a 50% increase for public entities, and a 40% increase for private entities, in the allowable amount of solar energy available for net metering credits. This increase will provide immediate support for projects being developed in service territories where the caps have already been reached, and provides the Department of Public Utilities with the authority to raise the caps further, as needed in the future.  Previously, the Administration announced a coordinated process with Rhode Island and Connecticut to issue a Request for Proposal (RFP) for clean energy resources. At the same time, the Governor instructed the DOER to commence a proceeding at the DPU to consider how the electric utilities can pursue gas capacity contracts that would improve winter reliability and lower winter electricity costs.  On October 2, the DPU issued its Order Determining Department Authority under G.L. c. 164, 94A that utilities can enter into such long term gas contracts to reduce electricity costs.