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FERC, CFTC, and State Energy Law Developments

Our litigation and environmental teams recently discussed the DC Circuit’s ruling that rejected a challenge to the EPA’s listing of a site on the Superfund National Priorities List (NPL). This decision will inform listing decisions at other sites with subsurface contamination, and could lead to the listing of more industrial sites on the NPL. It also serves as a reminder that parties must evaluate and raise with EPA in the preliminary assessment and site listing process all potential challenges to EPA’s listing decision.

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A notice of proposed rulemaking (NPRM) titled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” published today by the White House’s Council on Environmental Quality (CEQ), is likely to have far-reaching effects for the energy and public infrastructure sectors, and could facilitate more efficient implementation of energy production/generation projects for all major energy sources (i.e., renewable, fossil, nuclear, and hydroelectric sources) as well as transportation projects.

The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays.

It will be important for industry entities that depend on federal agency action when advancing projects and securing permits to actively participate in the proposed rulemaking, and to provide meaningful comments that will help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.

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