Environmental Regulation: Updates from Tallahassee and Washington. Malcolm N. Means July 2017

Transcription

1 Environmental Regulation: Updates from Tallahassee and Washington Malcolm N. Means July 2017

2 State Regulation 2

3 Pollution Notification Rule Fall 2016 Governor Scott orders DEP to issue an emergency rule requiring public notification of pollution incidents The emergency rule required owners to directly notify local officials and the media if there was any incident involving pollution Balancing the public s right to be informed against burden on reporting parties and local government 3

4 Pollution Notification Rule Heavy burden on reporting entities and local governments, risked providing too much information to the public What is an incident involving pollution? ½ gallon of hydraulic oil in a landfill 8oz spill of oil on a dock 2 gallons of water containing Miracle Gro 3 barrels of hot water spilled in an empty peanut field 4

5 New Notification Rule More clarity incident involving pollution becomes reportable pollution release Generally means a discovered, unauthorized release of a substance that must be reported to the State Watch Office under a provision in a rule, permit, order, or variance Must report to the State Watch Office within 24 hours. Burden shifted to FDEP to announce the release FDEP is better equipped to evaluate the incident and inform the public 5

6 Solar Amendment 4 6

7 What does it do? Exempts 80% of the value of solar from tangible personal property tax for 20 years; Abates any increases in real property tax assessments due to the existence of a renewable energy source device for 20 years; Commercial and utility scale solar installation no longer impacted by TPP or increases in real property tax assessments due to solar installations; Solar leases no longer impacted by TPP tax. 7

8 What is TPP? Tangible personal property (TPP) is everything other than real estate that is used in business or rental property. Examples are computers, furniture, tools, machinery, signs, equipment. 8

9 Solar Developer Impact PPA prices are falling more quickly than equipment and installation costs. Increasing demands for margin from investors. Solar developer tenants are responsible for taxes. Property taxes eat into PPA margins, so Amendment 4 provides some relief. 9

10 Commercial Rooftop Impacts Commercial rooftop, carport, ground mount Mostly self generation Property taxes eat into utility cost savings 10

11 Linear Facilities Legislation 11

12 Siting Acts Power Plant Siting Act (1973) 75MW or more Transmission Line Siting Act 230kV or larger; Cross a county line; and 15 miles or longer efficient, simplified, centrally coordinated, one stop licensing process (3), F.S. 12

13 PPSA Carefully balances local interests against state wide need for utility service Ensuring Need Public Service Commission must issue an affirmative determination that there is a present and future need for the plant before PPSA hearing may be held (4), F.S. Considering Local Concerns Applicant must file a statement addressing whether the power plant and any associated facilities that constitute a development as defined in s are consistent with local land use regulations. Siting Board may conduct consistency review 13

14 Development Exemption Section , Florida Statutes, exempts [w]ork by any utility and other persons engaged in the distribution or transmission of gas, electricity or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights of way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like from the definition of development 14

15 Why does this exemption matter? Facilities and activities that do not constitute development as defined in s , F.S., are not subject to future land use mapping or zoning ordinances 15

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17 Miami Dade Cnty. v. Fla. Power & Light Co. In May of 2014, the Siting Board issued a Final Order of Certification for FPL s Turkey Point Units 6 & 7, included certification for associated transmission lines Local governments argued unsuccessfully before Siting Board that their land use regulations applied Appealed to the 3 rd District Court of Appeal, arguing that linear facilities are exempt from development only where located on an established right of way, meaning one that existed prior to certification 17

18 What is established? VS 18

19 3 rd DCA s Opinion The court adopted the local governments argument, stating construction of transmission lines on land that is not established as a right of way constitutes development. Effect linear facilities are subject to local government zoning and land use approvals unless they are located on right ofway that is established before certification 19

20 2017 Legislation HB 1055, SB 1048 Bills would have revised the definition of development to refer to established or to be established rights of way or corridors Died in the House Commerce Committee 20

21 Federal Regulation 21

22 Trump Administration A difference in viewpoint vs. 22

23 So, how is this playing out? EPA Rolling Back Federal Environmental Programs Targeting Recent Rules Waters of the U.S. Effluent Limitation Guidelines Clean Power Plan Targeting the Budget 23

24 Waters of the U.S. vs. 24

25 Why does anyone care? Clean Water Act regulatory programs only apply to waters of the U.S. Water Quality Standards Total Maximum Daily Loads NPDES Permitting Dredge & Fill Permitting Citizen Suit Provisions May affect total project costs (both time and money) 25

26 WOTUS Timeline Pre 2006 EPA and the Corps defined broadly, including intermittent streams, intended to extend to the limits of the term 2006 Rapanos v. United States Supreme Court rejects this definition Justice Kennedy (concurrence) traditional navigable waters and adjacent waters with a significant nexus Justice Scalia relatively permanent bodies of water and adjacent wetlands with a continuous surface connection May 26, 2015, EPA and the Army Corps of Engineers finalize a rule adopting significant nexus test 26

27 Waters of the U.S. Lawsuits filed against the rule Florida and 29 other states Agricultural, business, governmental, and environmental groups Some in district courts, others in appellate courts 6 th Circuit consolidated suits; stayed the rule Became a 2016 campaign issue 27

28 Waters of the U.S. E.O , Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule, Feb. 28, 2017 It is in the national interest to ensure that the Nation s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution. Directs EPA review the waters of the U.S. rule 28

29 Waters of the U.S. March 6, 2017 Corps & EPA published advanced notice of a forthcoming proposed rulemaking Primary guideposts for redefining scope of waters of the United States applying Justice Scalia s test: (1) Relatively permanent bodies of water and (2) Adjacent wetlands with a continuous surface connection to those waters Pre rulemaking outreach to States

30 Background CWA and Federalism CWA based on cooperative federalism State Government Water quality standards for each water body State designates a use for each body, then develops criteria to protect that use Federal Government Technology based guidelines for wastewater discharges Apply nationwide Ensure similar facilities, regardless of location, meet similar guidelines 30

31 So What are Effluent Limitation Guidelines? EPA designates the best technology for each industrial sector, e.g. steam electric power generation EPA considers performance level of different technologies, their availability, and their cost One determined, ELG applies to all facilities in that sector nationwide 31

32 Effluent Limitation Guidelines Sept. 30, 2015 EPA finalizes effluent limitation guidelines for steam electric power generating industry Waste streams Flue gas desulfurization Fly ash transport Bottom ash transport Combustion residual leachate Flue gas mercury controls 5 th Circuit Litigation Compliance Date as soon as possible beginning Nov. 1, 2018, but that is also no later than Dec. 31,

33 Effluent Limitation Guidelines March / April 2017 Petitions for reconsideration Utility Water Act Group Small Business Administration April, May 2017 Citing new information & questions of feasibility, EPA stays compliance dates for new, more stringent ELG provisions Multiple procedural & legal steps taken EPA asks for stay of 5 th Circuit litigation while it reconsidered the rule Court granted stay until August 12, 2017 Bottom line: EPA is unwinding the ELG rule 33

34 Clean Power Plan Final Rule published in October 2015 States required to establish performance standards for CO 2 emissions through one of two options Emissions standards directly applied to sources, with trading system Statewide mass based target 34

35 CPP Prospects? 35

36 CPP Timeline Fall 2015 CPP is published Late 2015, Early 2016 legal challenges filed February 2016 Supreme Court stays CPP Rule Fall 2016 DC Circuit hears oral arguments March 2017 President Trump signs Energy Independence Executive Order, EPA requests abeyance in DC Circuit litigation April 2017 EPA withdraws the 2015 CPP regulations; D.C. Circuit grants 60 day abeyance May 2017 briefs filed abeyance vs remand June 2017 EPA files status report with DC Circuit, indicates agency review has begun; submits proposal to OMB 36

37 CPP Potential Outcomes Will litigation stay continue? EPA wants continued abeyance, review in progress NGOs want a decision on the merits Regardless of litigation outcome, EPA will need new notice and comment rulemaking to revise, repeal, or replace the CPP Final Rule 37

38 March 21 st Budget $$ = Policy Proposed EPA Budget 31% decrease Focus: federal only and national efforts support to states 38

39 Malcolm N. Means Hopping Green & Sams 119 S. Monroe Street Suite 300 Tallahassee, FL (850) Thank You! 39