Lewis Roca Blog

Louisiana has joined the growing number of states requiring solar producers to provide financial security for clean-up costs associated with shutting down their facilities.

The Pennsylvania legislature is weighing two bills that require decommissioning plans for solar energy projects, and the debate over them among lawmakers illustrates the challenges associated with developing a solution to this growing issue in the renewable energy industry.

On January 24th, the U.S. Supreme Court granted Certiorari in Sackett, Michael, et ux. v. EPA, et al. on the limited question of “[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.”

As more states continue to adopt and consider rules for renewable energy facility decommissioning, they do so against the backdrop of the existing federal financial assurance rules implemented by the Bureau of Land Management (“BLM”) (and, for offshore facilities, the Bureau of Ocean Energy Management).

On August 30, 2021, Judge Marquez of the U.S. District Court for the District of Arizona vacated the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers’ (“Corps”) (collectively “Government Defendants”) 2020 “Navigable Waters Protection Rule” (“NWPR”), finding that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”

The opinion resolves the key legal issue in a citizen suit brought by a number of environmental interest groups alleging that Maui County, Hawaii, requires a CWA permit in connection with discharges of treated sewage into groundwater.

Southern District of Texas Remands Obama WOTUS Rule The U.S. District Court for the Southern District of Texas decided on May 28, 2019, that the Obama-era Clean Water Rule defining “waters of the United States” (WOTUS Rule), see 80 Fed. Reg. 37,054 (June 29, 2015), must be remanded to the U.S. Environmental Protection Agency.