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Air Quality & Regulatory Compliance

Davis Graham & Stubbs LLP environmental lawyers have represented clients in important aspects of air quality and climate change regulation and enforcement defense for many years. We have participated in significant federal and state enforcement defense, litigation, and rulemaking proceedings under the Clean Air Act (CAA) for several decades. More recently, we played a leading role in defending numerous oil and gas companies in EPA’s national enforcement initiative focusing on storage tank emissions at upstream oil and gas production facilities, and assisting clients and regulators tackle the problem of ozone attainment and the adoption of reasonable and effective control measures through rulemaking.

We know the challenges of demonstrating compliance and reporting variances from compliance under Title V operating permits, and minor source construction permits. We have handled many successful minor modifications of permits, while avoiding the triggering of major source applicability. We know well the vagaries of permitting “aggregated” operations and have been directly and prominently involved in some of the most significant CAA aggregation cases adjudicated and pending adjudication in recent years nationally. We are also experienced at permitting and advising compliance regarding stationary engines, some subject to New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) regulations such as Quad I, Quad J, and the RICE MACT provisions applicable to major and area sources of hazardous air pollutants, (including emergency backup generators that can prove difficult to permit).

We have also successfully navigated Colorado Department of Public Health and Environment (CDPHE) Air Pollution Control Division applicability determinations, including top-down analyses for Best Available Control Technology (BACT) determinations, and Regulation No. 3 Reasonably Available Control Technology (RACT) determinations for client facilities, as well as various NSPS provisions and process plan requirements. We have handled several complex air quality enforcement actions, including a precedent-setting PSD judicial enforcement action by the Department of Justice.

Climate Change

Our clients have faced voluntary or mandatory greenhouse gas (GHG) reporting, new GHG emission requirements, emerging theories of potential liability in climate change litigation, and public disclosure of the costs and risks posed by climate change issues. We have the multidisciplinary skills and experience to help our clients meet these new and evolving challenges.

Representative Experience

Policy Analysis

  • Advise clients on a wide array of policy implications related to increased regulation of GHGs under President Obama’s Climate Action Plan
  • Provide strategic advise related to federal, state, and regional air quality initiatives surrounding climate change
  • Advise clients on current and future impacts to business operations as a result of climate change regulation
  • Assist various entities (including governmental agencies, NGOs, and corporations) in analyzing policy impacts of climate change in areas such as public disclosures, insurance trends, and local and state policy trends

Regulatory Compliance

  • Counsel oil and gas clients on GHG reporting under Subpart W
  • Advise oil and gas clients on implementation of Colorado’s new upstream methane regulations
  • Advise clients on New Source Review compliance following federal and state GHG regulatory initiatives and related litigation
  • Track climate change-related regulations for SEC disclosures and due diligence on transactional matters, particularly in the oil and gas sector
  • Counsel clients on climate change impacts and considerations for proposed projects under the National Environmental Policy Act
  • Track developments related to the Social Cost of Carbon and counsel clients on cost/benefit implications related to carbon pricing
  • Assist clients in a variety of challenges related to water use, including water storage projects, water permitting and rights issues, and impacts from droughts, floods, and other extreme weather events

GHG & the Clean Air Act (CAA)

  • Provide legal analysis regarding regulation of new, modified, and existing sources under CAA § 111(b) and (d), as part of a collaborative project for the Environmental Council of the States (ECOS)
  • Represent regional oil and gas trade association in national litigation related to federal regulation of GHGs under New Source Performance Standards (NSPS)
  • Advise clients on evolving Best Available Control Technology (BACT) determinations under New Source Review (NSR) and Prevention of Significant Deterioration (PSD) programs
  • Counsel clients on permitting and compliance strategies related to fugitive methane emissions
  • Work closely with technical air quality experts to help clients address regulatory initiatives related to climate change, including ozone issues in the Denver North Front Range 8-hour Ozone Nonattainment Area

New Technology

  • Counsel clients on a wide variety of issues related to increasing use of infrared cameras
  • Advised clients on development of various technology improvements to meet climate change demands, ranging from use of renewables in oil and gas fields, to development of advanced wind technology, improved water treatment, energy efficiency, alternatives to flaring produced gas, and other technological advancements
  • Assisted a startup company in assessing climate change trends and potential impacts on availability of funding and other startup needs

Government Relations

  • Utilize extensive governmental contacts to assist companies in advancing climate change-related agendas and initiatives
  • Serve on various committees and panels designed to assist the state government in planning for and developing climate change modifications, including the Colorado Energy Office
  • Consulted with Governor John Hickenlooper and staff regarding climate change policies, utilization of climate change coordinator, and other governmental policies involving climate change

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