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By Tommy Beaudreau and Janice Schneider

Alaska is kicking off 2018 following several major developments related to oil and gas exploration and production on federal lands on the North Slope, both onshore and on the offshore outer continental shelf (OCS).

In May 2017, Interior Secretary Ryan Zinke visited Alaska and declared that “the path for energy dominance is a path through the great state of Alaska.” While in Alaska, Secretary Zinke unveiled Secretarial Order 3352 “National Petroleum Reserve – Alaska,” which called for:

  • Re-evaluating the Bureau of Land Management’s (BLM) Integrated Activity Plan for the National Petroleum Reserve – Alaska (NPR-A) with an eye toward promoting oil and gas leasing and development in the NPR-A.
  • Developing updated oil and gas resource assessments for Alaska’s North Slope, focusing on federal lands in the NPR-A and the Section 1002 Area (the 1002 Area) of the Arctic National Wildlife Refuge (ANWR).

By Janice M. Schneider, Tommy P. Beaudreau, Stacey L. VanBelleghem, and Nikki Buffa

Stakeholders interested in energy development on US tribal lands will welcome recent Department of Interior (DOI) efforts that identify a key burden to energy development on these lands — as well as the Bureau of Indian Affairs’ (BIA’s) plans to address it. DOI issued the Review of the Department of the Interior Actions that Potentially Burden Domestic Energy report (DOI Burden Report) in response to Executive Order (EO) 13783, Promoting Energy Independence and Economic Growth, which required agencies to evaluate and report on all existing agency actions that “potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.” (For more on the DOI Burden Report, please see this November 2017 Latham & Watkins Client Alert.)

The BIA, a federal agency within DOI, is charged with managing trust assets of American Indians, Indian tribes, and Alaska Natives. As BIA noted in the DOI Burden Report, royalty income from energy production on tribal lands totaled US$534 million in 2016 and constitutes the largest source of revenue generated from tribal trust lands. BIA identified its existing regulations governing Tribal Energy Resource Agreements (TERAs) as a policy that potentially burdens domestic energy.

By Tommy Beaudreau, Janice Schneider, and David Amerikaner

The Bureau of Ocean Energy Management (BOEM) convened the Intergovernmental Renewable Energy Task Force for the New York Bight to discuss BOEM’s draft Call for Information and Nominations (Call) on December 4, 2017. The meeting, which was held via a webinar, marked an important step in the process to identify potential new wind energy areas (WEAs) in federal waters off of New York. BOEM plans to publish the Call in the Federal Register for formal public comment in late January or early February 2018 after considering inter-governmental input on the draft Call areas. With publication of the Call, BOEM will initiate the area identification process to delineate up to four potential new WEAs in the New York Bight, each with the estimated potential to generate at least 800 megawatts of electricity in support of the state’s renewable energy goals.

BOEM issued the draft Call, including the four new potential WEAs, in response to the New York State Research and Development Authority’s (NYSERDA) request to review proposed WEAs in the waters off New York and to expedite the permitting process for offshore wind development. More information, including maps of New York’s Area for Consideration, is available on NYSERDA’s website.

New York is prioritizing the development of renewable energy, and adopted a Clean Energy Standard (CES) in 2016. The CES mandates that 50% of New York’s electricity come from renewable sources by 2030, with a phase-in schedule beginning in 2017. Offshore wind energy stands to play a key role in meeting New York’s CES goals, which include a target of 2.4 gigawatts (GW) of offshore wind power. New York is currently preparing an offshore wind Master Plan that outlines information about project siting and environmental and use conflicts within a 16,740 square-mile study area. The State is expected to issue the Master Plan soon.

By Marc Campopiano and Shannon Cheng

A proposed Scoping Plan Update released by the California Air Resources Board (ARB) targets the land use sector and development projects for greenhouse gas (GHG) reductions. The proposed update was spurred by the passage of Senate Bill (SB) 32 and Assembly Bill (AB) 398, which codified California’s goal of reducing GHG emissions to 40% below 1990 levels by 2030 and extended the Cap-and-Trade Program, respectively.

In a shift from prior versions of the Scoping Plan, which largely avoided discussing the California Environmental Quality Act’s (CEQA’s) role in addressing climate impacts from new land use development, ARB recommends that local agencies cut GHG emissions from the land use sector in three key ways:

By Joel Beauvais

Can a discharge “through” groundwater violate the Clean Water Act?

If a pipeline spills fuel that travels through groundwater into a stream, is it a discharge in violation of the Clean Water Act (CWA)? What if pollutants leach out of a coal ash impoundment into groundwater and later end up in a nearby river? What if a sewage utility injects treated wastewater into the ground and it travels through groundwater to the ocean? These are the kinds of questions raised by a rapidly expanding set of CWA citizen suits based on the so-called “groundwater conduit” theory. The theory holds that an unpermitted discharge of a pollutant into groundwater can violate the CWA if the pollutant is conducted through groundwater to a “water of the United States.” More than half a dozen district court decisions addressing this issue have been handed down in the last few years, and at present five appeals are pending in three different U.S. Courts of Appeals. The sheer volume of litigation, together with the serious implications of the theory for a host of major industries, make this one of the hottest issues in environmental law today and a likely candidate for Supreme Court review.