Latham & Watkins

Subscribe to Latham & Watkins's Posts

The Court’s decision has prompted the US Army Corps of Engineers to freeze jurisdictional determinations for permitted activities pending additional guidance.

By Michael G. Romey, Lucas Quass, and Peter R. Viola

On May 25, 2023, by a narrow 5-4 majority, the US Supreme Court ruled in Sackett v. EPA that the Clean Water Act (CWA) only extends to wetlands that have a “continuous surface connection” with “waters of the United States” (WOTUS) — the term in the CWA’s definition of “navigable waters” that determines the jurisdiction of the US Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) (together, the Agencies) over projects and other activities requiring permits to dredge, fill, or discharge into federally protected waters.[1]

The move represents a step forward for the small modular nuclear reactor industry, but legislative uncertainty over new nuclear facilities in the US remains.

By Marc Campopiano, Lucas Quass, and Shawna Strecker

As part of long-range plans to address climate change, many states have adopted policies to spur the transition to a low-carbon future. Renewable sources like solar, wind, and geothermal energy have garnered considerable attention, but nuclear power is the largest domestic source of carbon-free power. Nuclear power plants have supplied about 20% of total annual US electricity since 1990.[1] Yet, even as the US and many states seek to decarbonize their energy sectors, nuclear reactors in the US are being decommissioned because of age, and new nuclear facilities often face public opposition.

The reform mainly focuses on streamlining and narrowing the scope of environmental review at the federal level.

By Janice Schneider, Nikki Buffa, Devin O’Connor, and Kevin Homrighausen

On June 3, 2023, President Biden signed legislation implementing the bipartisan debt ceiling and budget agreement as the “Fiscal Responsibility Act of 2023.” As part of this legislation, Congress agreed to several federal permitting reform measures, focused largely on amendments to the National Environmental Policy Act (NEPA).

NEPA requires federal agencies to consider the potential environmental impacts of discretionary major federal actions (e.g., including issuing permits and granting federal funding) before they are taken. As part of this analysis, agencies must evaluate alternatives to the proposed action and consider mitigation measures, and must provide an opportunity for public input. The scope and detail of NEPA review can affect the contours, timing, and ultimate outcome of federal decision-making and is frequently litigated by project opponents. The new amendments to NEPA in the Fiscal Responsibility Act draw substantially from other proposed legislation and regulatory amendments in recent years. These new provisions are designed to narrow the scope of federal actions that are subject to NEPA, consolidate NEPA review under a single “lead” agency, and impose time and page limits for environmental documents under NEPA, among other changes described below.

Public agencies prevailed in 71% of decisions involving the California Environmental Quality Act in 2022.

By Marc Campopiano, Lucas Quass, Natalie Rogers, and Kevin Homrighausen

Latham lawyers tracked key developments in California Environmental Quality Act (CEQA) case law throughout 2022. On April 20, 2023, Latham lawyers held a webcast highlighting important cases from the past year, summarizing practical takeaways, and covering trends in CEQA. (See the webcast and the corresponding 2022 CEQA Year in Review presentation.) Below is a compilation of the information from that annual review and patterns that emerged.

EPA’s long-awaited proposal would set aggressive emission reduction targets with many different approaches and timelines to achieve them.

By Stacey L. VanBelleghem and Jennifer Garlock

On May 11, 2023, the US Environmental Protection Agency (EPA) released its proposed rule[1] to regulate carbon dioxide (CO2) emissions from electric generating units (EGUs) at power plants under Section 111 of the Clean Air Act (CAA) (the Power Plant GHG Rule or the Proposed Rule).

The Power Plant GHG Rule consists of five proposed actions:

  1. determinations and updates to current CO2 standards of performance (promulgated in 2015) for new and reconstructed stationary combustion turbines (generally natural gas-fired) pursuant to Section 111(b) of the CAA;
  2. determinations and updates to current CO2 standards of performance (promulgated in 2015) for modified fossil fuel-fired steam-generating EGUs (generally coal-fired) pursuant to Section 111(b) of the CAA;
  3. determinations and CO2 emission guidelines for existing fossil fuel-fired steam-generating EGUs (generally coal-fired) pursuant to Section 111(d) of the CAA;
  4. determinations and CO2 emission guidelines for large, frequently used existing fossil fuel-fired stationary combustion turbines (generally natural gas-fired) pursuant to Section 111(d) of the CAA; and
  5. a repeal of the Trump-era Affordable Clean Energy (ACE) Rule.

EPA is also soliciting comment on a number of topics, including potential options and emission guidelines for existing fossil fuel-fired stationary combustion turbines not otherwise covered by the Proposed Rule (generally natural gas-fired units that are either smaller or less frequently used).

We analyze the key CEQA cases from 2022 and how they have impacted development in California.

By Marc Campopiano, Winston Stromberg, Daniel Brunton, Lauren Glaser, Kevin Homrighausen, and Natalie Rogers

The California Supreme Court and the Courts of Appeal issued 50 published and unpublished opinions on the California Environmental Quality Act (CEQA) in 2022. We review these cases in our forthcoming “CEQA Case Report: Understanding the Judicial Landscape for Development.”

Our annual comprehensive report summarizes…

The state must dramatically expand its energy infrastructure and renewable energy sources to satisfy growing demand for electricity while meeting ambitious climate goals, according to California Independent System Operator’s Draft 2022-2023 Transmission Plan.

By Marc Campopiano, Joshua Bledsoe, Julie Miles, and Shawna Strecker

California has committed to ambitious carbon reduction targets and pledged to become carbon neutral no later than 2045.[1] However, to meet these lofty goals while providing reliable energy for millions, the state must commit to an unprecedented degree of renewable power and transmission line development.

The challenge is highlighted by the Draft 2022-2023 Transmission Plan (Draft Transmission Plan) published on April 3, 2023, by the California Independent System Operator (CAISO), the independent energy grid operator that serves approximately 80% of California and a small part of Nevada. As of 2018, California had about 80 gigawatts (GW) of total electric generating capacity.[2] CAISO predicts that California will need to almost double that total capacity in the next decade with new renewable generation and greatly expand the transmission grid in order to achieve clean power targets and vast electrification programs as California attempts to phase out fossil fuel usage. This scale of infrastructure buildout will require unprecedented investments, vastly expedited environmental permitting and review by regulatory agencies, and sustained political will to substantially incentivize and streamline priority projects.

This blog post examines the ambitious roadmap outlined in the Draft Transmission Plan, and CAISO’s long-term transmission planning more broadly, to advance California’s climate goals by undertaking 46 transmission projects and adding at least 40 GW, mostly from renewable sources, to the CAISO grid over the next 10 years.

A federal court heard motions for summary judgment in challenge to first-in-nation rule requiring warehouses to adopt clean technologies.

By Joshua Bledsoe, Nick Cox, and Jennifer Garlock

On April 17, 2023, a US federal judge heard arguments in a lawsuit challenging the South Coast Air Quality Management District (SCAQMD or the District) adoption of Rule 2305 and will now decide whether to grant summary judgment to the plaintiffs and vacate the rule.

Rule 2305 is the Warehouse Indirect Source Rule (ISR) — Warehouse Actions and Investments to Reduce Emissions (WAIRE) Program. As described in this June 2021 blog post, the WAIRE Program applies to certain warehouses in the South Coast Air Basin and imposes a compliance obligation based on the number of truck visits to that warehouse per year. Warehouse operators can meet that obligation by taking any number of emissions-reducing actions, either from the “WAIRE Menu” or through a custom plan approved by the District.