Yesterday, Justice Scalia, writing for a majority of the United States Supreme Court, invalidated EPA’s greenhouse-gas (GHG) regulations to the extent they require stationary sources to obtain a Prevention of Significant Deterioration (PSD) and/or Title V major source permit based solely on the source’s GHG emissions. The Court, however, also validated EPA’s extension of “best available control technology” (BACT) requirements to GHG emissions at sources already subject to PSD requirements based on criteria pollutant emissions (so-called “PSD-anyway” sources). Thus, while EPA’s authority to require BACT controls for GHGs at so-called PSD-anyway sources was upheld, the broad scope of authority claimed by EPA was significantly reduced. The case, Utility Air Regulatory Group v. EPA (“UARG”), No. 12-1146, is a significant development in EPA’s efforts at regulating GHGs in the absence of Congressional action and, as discussed below, raises a number of important issues and questions.
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Compliance with FDA Labeling Guidelines No Defense Against Federal Unfair Competition Claims
In a highly-anticipated decision, the United States Supreme Court announced today that compliance with the Food and Drug Administration’s food labeling guidelines is no defense against unfair competition claims brought by competitors under the Lanham Act. Quite the contrary – the Court found today, in the case of POM Wonderful LLC v. Coca-Cola Co., “powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring proper food and beverage labeling.”
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Calling All Angels: Advanced Industry Investment Tax Credit Incentivizes Early Stage Investment in Innovative Start-Up & Emerging Companies
On May 30, 2014, Governor Hickenlooper signed into law HB14-1012, creating an exciting new state income tax credit to incentivize investment in Colorado’s advanced industry companies. Subject to certain limitations discussed below, qualified investors will receive a tax credit of 25 percent of their qualified investments in qualified small businesses in advanced industries. If the company is located in a rural or economically distressed area in Colorado, the tax credit is 30 percent of the qualified investment.
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The Devil’s in the Details: EPA’s Advance Notice of Proposed Rulemaking on Hydraulic Fracturing Disclosure
On May 9, 2014, the U.S. EPA issued a pre-publication copy of an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on regulatory and voluntary mechanisms for obtaining information on chemical substances and mixtures used in hydraulic fracturing (HF) operations. EPA intends to rely for this purpose upon its Toxic Substances Control Act (TSCA) authority – namely, TSCA Section 8(a), which authorizes EPA to require chemical manufacturers and processors to maintain records and submit information to the Agency, and TSCA Section 8(d), which authorizes EPA to require the submission of health and safety studies from chemical manufacturers, processors, and distributors.
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A Sweet or Sour Development? EPA’s Reduction of Sulfur Content in Gasoline Under the Tier 3 Program
Gasoline sulfur levels have already been reduced by up to 90 percent as a result of the United States Environmental Protection Agency’s (EPA’s) Tier 2 Gasoline Sulfur Program. On March 3, 2014, EPA issued a pre-publication notice finalizing its newest fuels program (the Tier 3 Program) intended to further reduce gasoline sulfur content, as well as exhaust and evaporative emissions from vehicle engines. This Client Alert focuses on the sulfur content reduction component of the Tier 3 Program and the impact that it will have on crude oil refiners. Specifically, on January 1, 2017, the majority of refineries will need to produce gasoline and/or ethanol-gasoline blends that contain, on annual average, no more than 10 parts per million (ppm) sulfur. The impact of the new Tier 3 Program may not be as onerous for those refiners working primarily with low-sulfur (or sweet) crude oil, as sulfur levels in sweet crude are markedly lower than “sour” crude (of which sulfur content is generally greater than 0.5 percent).
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Energy Industry Faces Increased Exposure to Claims by Patent Trolls
A patent-assertion entity (PAE) or non-practicing entity (NPE) is an entity that enforces patent rights against others, but does not itself use the patents for any productive purpose. A perennial adversary of high-tech companies and startups, recent studies looking at the rise in patent litigation reveal that these “patent trolls” are turning their sights increasingly on less traditional technology innovators – including those in the energy industry.
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Troubled Waters Ahead! New Proposed Rule Defines Areas Regulated by Clean Water Act
On March 25, 2014, EPA and the Army Corps of Engineers issued a pre-publication release of the much-anticipated proposed rule to define the jurisdictional “Waters of the United States” that are regulated under the Clean Water Act (CWA). The proposed rule is aimed at providing clarity and certainty to “jurisdictional water” determinations in the wake of the uncertainty resulting from the 2006 U.S. Supreme Court ruling in Rapanos v. U.S. To that end, the rule proposes to minimize the number of case-specific determinations that will be required by codifying specific categories of waters that will automatically be included or excluded as jurisdictional “waters of the United States.”
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New Fund Available for the Investigation and Cleanup of Petroleum-Impacted Properties
Effective January 31, 2014, the Colorado Division of Oil and Public Safety (Division) promulgated regulations implementing Colorado Revised Statute § 8-20.5-103(9) which established the new Petroleum Cleanup and Redevelopment Fund (Fund). The Fund was created using money the State received in settlement of certain claims related to the Petroleum Storage Tank Fund.
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EPA to Hold Public Hearing in Denver on Proposed General Permits and Permits by Rule for Minor Source NSR Permitting in Indian Country
On March 12, 2014, the Environmental Protection Agency (EPA) will hold a public hearing in Denver, Colorado on the proposed “General Permits and Permits by Rule for the Federal Minor New Source Review Program in Indian Country,” which the agency initially released on December 12, 2013, and published in the Federal Register on January 14, 2014 (79 Fed. Reg. 2546). The proposal is intended to further implement and amend the Indian Country Minor New Source Review (NSR) Rule issued by EPA in July 2011, which authorized but did not specifically include any general permits or permits by rule for minor sources operating in Indian Country.
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New Colorado Policy for Conditional Closure of “Low-Threat” Sites with Groundwater Contamination – A Long-Awaited Exit From Remediation Limbo?
On January 8, 2014, the Colorado Department of Public Health and Environment’s (CDPHE) Hazardous Materials and Waste Management Division published a new policy which provides a roadmap for closing “low-threat” sites where groundwater contamination concentrations exceed Colorado’s groundwater standards.