Lisa Rushton

The Trump Administration has proposed the first major changes to the National Environmental Policy Act (NEPA) in more than three decades. These proposed changes (announced in a Jan. 10, 2020 Notice of Proposed Rulemaking) would limit the scope of environmental impact assessments that federal agencies must undertake before building highways, pipelines, bridges, telecommunications networks and other public infrastructure projects. Stay tuned for upcoming webinar on proposed changes and potential… Show more

The Trump Administration has proposed the first major changes to the National Environmental Policy Act (NEPA) in more than three decades. These proposed changes (announced in a Jan. 10, 2020 Notice of Proposed Rulemaking) would limit the scope of environmental impact assessments that federal agencies must undertake before building highways, pipelines, bridges, telecommunications networks and other public infrastructure projects. Stay tuned for upcoming webinar on proposed changes and potential implications. Show less

On May 1, 2015, the U.S. Court of Appeals for the District of Columbia Circuit struck down the 100‑hour exemption from air pollution controls that EPA granted to emergency backup generators in 2013. The attached article discusses the unanimous decision in Delaware Department of Natural Resources v. EPA affects the use of backup generators, which often run on diesel fuel, to reduce consumption of electric energy from the grid during times of high pricing and heavy loading, but it leaves… Show more

On May 1, 2015, the U.S. Court of Appeals for the District of Columbia Circuit struck down the 100‑hour exemption from air pollution controls that EPA granted to emergency backup generators in 2013. The attached article discusses the unanimous decision in Delaware Department of Natural Resources v. EPA affects the use of backup generators, which often run on diesel fuel, to reduce consumption of electric energy from the grid during times of high pricing and heavy loading, but it leaves untouched the use of backup generators in remote, low density areas, during emergency situations, or for routine testing and maintenance. Show less

Article relies heavily on our prior analysis of State approaches to fracking regulations. How fun!

The energy revolution generated by hydraulic fracturing and its economic impacts over the past decade have materially shifted the US and international worldview. Positive developments in the financial and operational environment yielded by fracing have naturally been accompanied by efforts to avoid negative impacts to the physical environment. One of the primary areas of industry, public, and regulatory attention has been management of flowback and produced water from fracing, known as… Show more

The energy revolution generated by hydraulic fracturing and its economic impacts over the past decade have materially shifted the US and international worldview. Positive developments in the financial and operational environment yielded by fracing have naturally been accompanied by efforts to avoid negative impacts to the physical environment. One of the primary areas of industry, public, and regulatory attention has been management of flowback and produced water from fracing, known as wastewater. Regulation of wastewater is primarily, though not exclusively, a state issue. This article focuses on some of the trends in regulation of wastewater management across the US and examines how regional variations are impacting operations. Show less

Law360, New York (June 03, 2014, 5:13 PM ET) -- The spread of unconventional energy exploration and production across the U.S. is creating a growing demand for residential and commercial real estate in new markets, but experts say developers will have to be able to stomach regulatory and environmental risk in order to cash in.

A report released this month by CBRE Group Inc. examining the impact of the so-called energy revolution on U.S. commercial real estate showed that high-net-worth… Show more

Law360, New York (June 03, 2014, 5:13 PM ET) -- The spread of unconventional energy exploration and production across the U.S. is creating a growing demand for residential and commercial real estate in new markets, but experts say developers will have to be able to stomach regulatory and environmental risk in order to cash in.

A report released this month by CBRE Group Inc. examining the impact of the so-called energy revolution on U.S. commercial real estate showed that high-net-worth individuals and private equity firms are eager to fund real estate projects in energy development areas. Returns are high and overall risk is perceived to be lower than in the past, thanks to the discovery of large reserves and technological advancements.

But there are challenges as well: The cyclical nature of an energy development project dictates when, what and how much can be built; local laws regarding unconventional energy exploration, particularly hydraulic fracturing, are changing all the time; and concerns about the potential environmental impact of such practices can turn people off from living, working and playing near them.

"More and more developers are buying into it. ... They're starting to have a better comfort level," said Lisa Rushton, a partner in Paul Hastings LLP's environmental and energy practice. "[But] there are competing issues: economic forces and locals concerned about the impact on property that they already own."...

--Editing by Elizabeth Bowen and Katherine Rautenberg. Show less

On May 9, 2014, the Environmental Protection Agency (“EPA”) issued a pre-publication of its Advance Notice of Proposed Rulemaking (“ANPR”) on chemical disclosure for fracturing fluids, with the final version published on May 19, 2014. Pursuant to its authority under sections 8(a) and (d) of the Toxic Substances Control Act (“TSCA”), the EPA is requesting comment on the design and scope of potential regulatory or voluntary regimes for disclosure of chemical substances and mixtures used in… Show more

On May 9, 2014, the Environmental Protection Agency (“EPA”) issued a pre-publication of its Advance Notice of Proposed Rulemaking (“ANPR”) on chemical disclosure for fracturing fluids, with the final version published on May 19, 2014. Pursuant to its authority under sections 8(a) and (d) of the Toxic Substances Control Act (“TSCA”), the EPA is requesting comment on the design and scope of potential regulatory or voluntary regimes for disclosure of chemical substances and mixtures used in hydraulic fracturing (or “fracing”). As discussed in more depth below, the EPA’s openness to making at least part of the program voluntary and questions on technological and economic feasibility are interesting facets of the ANPR. Comments are due on August 18th. Those engaged in the business of hydraulic fracturing or wastewater management associated with fracturing fluids should monitor and participate in this proceeding Show less

Hydraulic fracturing (or “fracing”) is a practice used in the oil and gas industry for more than half a century, and breaks open crude oil and natural gas bearing rock-formations to increase output at oil and natural gas wells by using high pressure fluid injection. Recently, it has been hard to go a few days without hearing of a lawsuit, proposed regulation, or new environmental study that relates to fracing. Controversies exist in part due to a level of scientific uncertainty, but also due to… Show more

Hydraulic fracturing (or “fracing”) is a practice used in the oil and gas industry for more than half a century, and breaks open crude oil and natural gas bearing rock-formations to increase output at oil and natural gas wells by using high pressure fluid injection. Recently, it has been hard to go a few days without hearing of a lawsuit, proposed regulation, or new environmental study that relates to fracing. Controversies exist in part due to a level of scientific uncertainty, but also due to certain misperceptions, when combined with social media, has created a firestorm. This article briefly discusses the regulations proliferating throughout the country with regard to hydraulic fracturing fluids, and how those regulations are driving wastewater management decisions. Show less

In a direct and final rule published by the United States Environmental Protection Agency (EPA) on December 30, 2013, the EPA formally adopted a new standard for conducting All Appropriate Inquiries (AAI) at potentially contaminated sites. AAI is the process that purchasing parties must take to look into the prior ownership and use of potentially contaminated sites in order to qualify for certain protections from liability under CERCLA. Although EPA will continue to authorize use of the ASTM… Show more

In a direct and final rule published by the United States Environmental Protection Agency (EPA) on December 30, 2013, the EPA formally adopted a new standard for conducting All Appropriate Inquiries (AAI) at potentially contaminated sites. AAI is the process that purchasing parties must take to look into the prior ownership and use of potentially contaminated sites in order to qualify for certain protections from liability under CERCLA. Although EPA will continue to authorize use of the ASTM 1527-05 standard for a short time, the EPA expressed its view that the new standard (ASTM 1527-13) provides valuable improvements and strongly encourages its use over the pre-existing standard. Further, the EPA announced its intent to publish additional amends to the AAI rule that will remove reference to the prior standard. What this means for future aquisitions is that the new standard may add to the cost and time necessary to perform Phase I reports. Prospective purchasers should take this potential delay into account when negotiating due diligence time frames with sellers. And, sellers should be aware that previously performed Phase I reports conducted using the 1527-05 standard may not be acceptable to a potential buyer who desire reports compliant with the new standard. Show less

Taking another key step toward becoming the first domestic mandatory program for the regulation of greenhouse gases, the Regional Greenhouse Gas Initiative (RGGI) provided notice of its first carbon dioxide (CO2) allowance auction. RGGI is a cooperative effort by 10 states located in the mid-Atlantic and Northeast to regulate CO2 emissions from fossil-fuel fired power plants through the use of a cap-and-trade regulatory regime. Six of the 10 participating states will offer CO2 emission… Show more

Taking another key step toward becoming the first domestic mandatory program for the regulation of greenhouse gases, the Regional Greenhouse Gas Initiative (RGGI) provided notice of its first carbon dioxide (CO2) allowance auction. RGGI is a cooperative effort by 10 states located in the mid-Atlantic and Northeast to regulate CO2 emissions from fossil-fuel fired power plants through the use of a cap-and-trade regulatory regime. Six of the 10 participating states will offer CO2 emission allowances for sale during the initial auction Connecticut, Maine, Maryland, Massachusetts, Rhode Island and Vermont. The remaining four states Delaware, New Hampshire, New Jersey, and New York are expected to complete the rulemakings necessary to participate in the program and offer allowances during a second auction, scheduled for December 2008. Show less