40 CFR Part 60 [EPA–HQ–OAR–2023–0072; FRL–8536–01– OAR] RIN 2060–AV09: New Source Performance Standards for Greenhouse Gas Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule.

This rule was promulgated by the EPA on 9 May 2024 to avoid the 22 May 2024 Congressional Review Act trigger which would have allowed the rule to be repealed by the next Congress on a procedural fasttrack. It sets GHG standards for new and certain existing fossil fuel electric generating units. The rule is under attack by red state attorneys general and by fossil fuel companies. The primary attack is that the Clean Air Act does not give the EPA the authority to require CSS to control GHGs from electric generating units. Petitioners argue that CSS is not a proven, available, cost-effective technology as required by the CAA. (Petitioners’ brief). EPA argues that it will be by the deadline for electric generating units to implement CSS. The case is before the DC Circuit, which has declined to enjoin the rule. The petitioners are currently seeking an injunction from the Supreme Court through its shadow docket process.

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Ideker Farms, Inc. v. United States, 71 F.4th 964, 980 (Fed. Cir. 2023); Court of Federal Claims – Ideker Farms, Inc. v. United States, No. 14-183L, 2018 WL 1282417 (Fed. Cl. Mar. 13, 2018)

This case recognizes a reliance interest in flood protection from federal flood control projects, rejecting the net value analysis of St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018). This arose on the Missouri River when the Corps changed the river management to protect endangered species. Owners of property that was worthless before the original flood control program sued when some of the property was flooded due to the change in river management. Under the net benefits test, they would not have a taking because the net value of the land was still higher. The court rejects that in favor of a sort of reliance test, saying that unless the original flood control project contemplated reflooding the land, reflooding is a taking.

Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana (Rotated Maps – Port St. Phillip crevasse study)

Factsheet – Pictorial Account and Landscape Evolution of the Crevasses near Fort St. Philip, Louisiana

This report documents how a natural diversion – a break in the river levee – lead to significant land loss, not land gain.

“Quantifying the effects of active natural and constructed crevasses is critical to the planning and success of future ecosystem restoration activities. This document provides a historical overview of landscape changes within the vicinity of the natural crevasses near Fort St. Philip, Louisiana. A significant event influencing landscape change within the Fort St. Philip study area was the breaching of the eastern levee of the Mississippi River. Initially, the river water that was diverted through these crevasse channels physically removed significant marsh areas within the study area. These initial direct impacts were succeeded by several decades of larger regional loss patterns driven by subsidence and other episodic events (e.g, hurricanes and floods), and recent localized land gains. These increases in land area are potentially the long-term results of the Fort St. Philip crevasses, and the short-term impacts of delta management activities. However, for the majority of the 1956-2008 period of analysis, the crevassing of the eastern bank of the Mississippi River levee was a loss accelerant in the Fort St. Philip area.”

Acceptance of Private Flood Insurance for FHA-Insured Mortgages

This final rule amends Federal Housing Administration (FHA) regulations to allow mortgagors the option to purchase private flood insurance on FHA-insured mortgages for properties located in Special Flood Hazard Areas (SFHAs), in satisfaction of the mandatory purchase requirement of the Flood Disaster Protection Act of 1973 (the FDPA). The FDPA, as amended, requires the owner of a property mapped in a SFHA, and located in a community participating in the National Flood Insurance Program, to purchase flood insurance as a condition of receiving a mortgage backed by the Government Sponsored Entities (GSEs), Department of Veterans Affairs (VA), U.S. Department of Agriculture (USDA), or Federal Housing Administration (FHA). In consideration of public comments, HUD’s experience implementing the program, and HUD’s goals of aligning with the Biggert-Waters Act while mitigating risk and protecting taxpayers’ funds, this final rule adopts HUD’s November 23, 2020, proposed rule with minor changes.