Search

The Defense Base Realignment and Closure Act of 1990 and the Federal Property and Administrative Services Act of 1949 provide the basic framework for the transfer and disposal of military installations closed during the base realignment and closure (BRAC) process. In general, property at BRAC installations is first subjected to screening for use by the Department of Defense and by other federal agencies. If no federal use for the property can be found or if an application for transfer is rejected, the property is deemed "surplus" to the needs of the federal government and made available for disposal through other mechanisms. At this point, BRAC property is subjected to two simultaneous evaluation processes: the redevelopment planning process performed by a local redevelopment authority comprised of various interested representatives of the community affected by the BRAC action; and a Department of Defense analysis prepared under the aegis of the National Environmental Policy Act and, eventually, informed by the local redevelopment plan. As a part of this process, screening of the property must be performed to determine if a homeless assistance use would be appropriate. There are also a variety of "public benefit transfers," under which the property may be conveyed for various specified public purposes at reduced cost. It is also possible to dispose of BRAC property through the use of a public auction or negotiated sale, for which fair market value or a proxy for fair market value must generally be obtained. Finally the law governing the BRAC process authorizes economic development conveyances, through which a local redevelopment authority may obtain the property for specified purposes, sometimes for no consideration, and implement its redevelopment plan itself. A series of legislative and administrative changes have altered the BRAC property transfer process since the last round of closures in 1995. This report provides an overview of the various authorities available under the current law and describes the planning process for the redevelopment of BRAC properties. It also explains the provisions of a recently proposed rule for the administration of BRAC property transfers issued by the Department of Defense. This report will be updated as events warrant. [ABSTRACT FROM AUTHOR]

This report addresses the authority of state and federal governments to control price gouging in the aftermath of Hurricane Katrina. Specifically, questions have arisen regarding increased prices in the areas affected by Hurricane Katrina and the effect that the damage caused by the hurricane will have on prices, specifically gasoline prices, in other parts of the country. State laws regarding price gouging in the event of an emergency are discussed, as well as the role the federal government could play in addressing rising gas prices in other parts of the country. This report will be updated as events warrant. [ABSTRACT FROM AUTHOR]

Liquefied natural gas (LNG) is a hazardous fuel frequently shipped in large tankers to U.S. ports from overseas. While LNG has historically made up a small part of U.S. natural gas supplies, rising gas prices, current price volatility, and the possibility of domestic shortages are sharply increasing LNG demand. To meet this demand, energy companies have proposed building dozens of new LNG import terminals throughout the coastal United States. But many of these terminals would be built onshore near populated areas, so local communities fear the terminals would expose them to unacceptable safety and security hazards. Potentially catastrophic pool fires or vapor cloud fires could arise from a serious accident or attack on LNG infrastructure. Faced with the widely perceived need for greater LNG imports, and persistent public concerns about LNG safety, Congress is examining the adequacy of safety provisions in federal LNG siting regulation. The Federal Energy Regulatory Commission (FERC) grants federal approval for the siting of new onshore LNG facilities under the Natural Gas Act of 1938. This approval process incorporates minimum safety standards for LNG established by the Department of Transportation, which, in turn, incorporate siting standards set by the National Fire Protection Association (NFPA). Although LNG has had a record of relative safety for the last 40 years, and no LNG tanker or land-based facility has been attacked by terrorists, experts have questioned the adequacy of key LNG siting regulations related to safety zones, marine hazards, hazard modeling, and remote siting. Experts have also questioned the validity of LNG hazard studies used by federal regulatory agencies which suggest that LNG terminal risks, while significant, are not as serious as is popularly believed. Congress may not see a compelling need to change current federal LNG siting requirements if it views the current regulations and processes as sufficient. Holders of this view would continue to rely on the judgment of LNG experts in federal agencies and standards committees to appropriately balance local public safety with national energy needs. On the other hand, Congress may conclude that some aspects of new LNG terminals do pose excessive public risks, or that there is still too much uncertainty about key risks to make final conclusions about public safety. In this case, Congress has several options to further address LNG terminal safety concerns. These options include 1) banning onshore LNG terminals, 2) redefining federal and local siting authority, 3) imposing more stringent federal LNG safety standards, 4) encouraging more LNG research, 5) curbing U.S. natural gas demand, and 6) developing alternatives to natural gas imports. Each of these policy alternatives has significant limitations, however, and may have undesirable consequences for national energy markets and other hazardous material infrastructure. Legislation addressing federal and state roles in terminal siting, H.R. 6 and H.R. 359, has been introduced in the 109th Congress, and LNG policies continue to be debated. This report will be updated as events warrant. [ABSTRACT FROM AUTHOR]

Technological advancements and tax incentives have driven a global expansion in the development of renewable energy resources. Wind energy, in particular, is now often cited as the fastest growing commercial energy source in the world. Currently, all U.S. wind energy facilities are based on land; however, multiple offshore projects have been proposed and are moving through the permitting process. It is relatively clear that the United States has the authority to permit and regulate offshore wind energy development within the zones of the ocean under its jurisdiction. The federal government and coastal states each have roles in the permitting process, the extent of which depends on whether the project is located in state or federal waters. Currently, no single federal agency has exclusive responsibility for permitting activities on submerged lands in federal waters; authority is instead allocated among various agencies based on the nature of the resource to be exploited. In addition to basic jurisdictional questions, it is not necessarily clear that current federal law should be interpreted to apply to offshore wind energy facilities or whether new laws will be needed. The Army Corps of Engineers (Corps) has been exercising jurisdiction over proposed offshore wind energy facilities under the Rivers and Harbors Act and the Outer Continental Shelf Lands Act. Recently, in Alliance to Protect Nantucket Sound v. United States Department of the Army, the U.S. Court of Appeals for the First Circuit upheld a federal district court decision that the Corps' jurisdiction under these laws was legally sound, and the Corps' decision to permit a preliminary data collection tower in federal waters was sustained. The reasoning of these courts may be applied to the permitting of larger-scale wind energy projects, although certain issues remain unresolved. It may remain arguable whether the Army Corps' jurisdiction extends to renewable energy projects in federal waters, and it is unclear whether Corps permits would provide an applicant with the necessary property rights to begin construction of an offshore wind energy facility. Several bills were introduced in the 108th Congress to address this issue, including several versions of versions of the Energy Policy Act of 2003: H.R. 6 and S. 2095. The energy bill would have placed authority for granting easements and rights-of-way on submerged federal lands in the hands of the Secretary of the Department of the Interior. Additional 108th Congress legislation, H.R. 1183, would have placed regulatory authority in the Secretary of the Department of Commerce by amending the Coastal Zone Management Act to allow specifically for renewable energy projects and the designation of ocean areas that would make suitable candidates for development. In the 109th Congress, H.R. 907 substantially incorporates the substance of the provisions found in the energy bill from the 108th Congress. This report will discuss the current law applicable to siting offshore wind facilities, the recent court challenges to the federal offshore permitting process, and the above-mentioned legislation that addresses offshore wind energy regulation. This report will be updated as events warrant. [ABSTRACT FROM AUTHOR]

Various state and federal laws play important roles in the regulation of mining activities. Mining for hardrock minerals on federal public lands is governed primarily by the General Mining Act of 1872. The General Mining Act authorizes a prospector to locate and claim an area believed to contain a valuable mineral deposit, subject to the payment of certain fees. The General Mining Act does not, however, require payment of a production-related royalty, as is required for federal oil, gas, and other minerals governed by more recently enacted laws. Critics of the General Mining Act suggest that the lack of a royalty payment serves as an unnecessary subsidization of the mining industry, while proponents of the current system suggest that it encourages investment in the domestic mining industry. Legislation has been introduced in previous Congresses that would have required royalty payments, but such provisions have not been enacted into law. Many states have enacted laws governing mineral rights and mineral development on state-owned lands. Of these laws, those applicable to hardrock minerals on state-owned lands vary considerably. Unlike the comparable federal law, however, many states now provide for state-owned hardrock mineral leases and authorize royalty and rental payment collection. In addition to financial issues, environmental regulation of hardrock mining also varies significantly under federal and state law. Significantly, the federal Surface Mining Control and Reclamation Act, which requires certain environmental remediation activities with respect to surface coal mining on federal and non-federal lands, is not applicable to hardrock minerals. Legislative proposals to address concerns related to hardrock mining environmental impacts and abandoned mine reclamation have been introduced in past Congresses (e.g. H.R. 2141 and H.R. 504 in the 108th Congress), but none have been enacted into law. In addition to federal regulation, states are authorized to implement surface mining reclamation laws and many have chosen to regulate hardrock mining operations in addition to surface coal mining. These laws vary from state to state, but most apply equally to federal, state, and private lands. This report provides a survey of state laws governing these above-mentioned aspects of hardrock mining. It is not meant to serve as a comprehensive description of each state's regulatory program, but instead provides an overview of the regulation of several specific activities associated with hardrock mineral development; focusing on (1) state imposed royalty rates and rental charges for hardrock minerals on state lands and (2) reclamation and bonding requirements for hardrock mining activities applicable to all mining operations. [ABSTRACT FROM AUTHOR]

Recent events, including the release of the President's U.S. Ocean Action Plan and reports issued by the United States Commission on Ocean Policy and the Pew Oceans Commission and, have prompted a reexamination of U.S. ocean policy and debate over an "ecosystem approach" to ocean resource management. One proposed mechanism for conserving ocean resources is the Marine Protected Area (MPA), conceptualized as a zoning system for the portions of the ocean under U.S. jurisdiction. The relative merits and the potentially negative consequences of such an MPA system have been widely discussed. Other, more focused types of ocean resource protections have been put into place under various federal and state laws. Advocates of additional protection argue that a more comprehensive system should be established. Others argue that the current system is effectively managing ocean resources and that additional restrictions would be economically harmful. Apart from the relative merits of each position, there is some question as to the applicability of current federal law to the oceans and whether new protections could be imposed administratively, without additional legislation. To some extent, regulatory authority will depend upon the nature of the jurisdiction that the United States has claimed over various ocean resources vis-a-vis other nations and vis-a-vis the states. Consistent with international law, the United States claims jurisdiction over marine areas extending 200 nautical miles from its coast and has regulated resources in the zones composing this area under multiple legal authorities. Several current laws which might provide authority for the creation of MPAs are aimed specifically at the ocean environment. The National Marine Sanctuary Program, established by the Marine Protection, Research and Sanctuaries Act, as well as the MagnusonStevens Fishery Conservation and Management Act, and the Coastal Zone Management Act each specifically contemplate various levels and forms of aquatic resource protection. Additionally, certain generally applicable laws, while primarily intended for use on land, would arguably support the designation of an MPA in some circumstances. Indeed, U.S. MPAs within the territorial seas have been established as national monuments, national parks, national wildlife areas, and, most recently, as a reserve via executive order. This report will outline U.S. jurisdiction over ocean resources, analyze the existing laws to assess their application to marine environments, and describe the regulatory authorities available under each option. It will be updated as necessary. [ABSTRACT FROM AUTHOR]

Growing demand for natural gas and perceived limitations on domestic supply have increased U.S. interest in the importation of liquefied natural gas (LNG) as a supplement to more traditional natural gas sources. Importation of LNG requires import terminals to transfer LNG from tanker ships to the nation's pipeline system for distribution to its ultimate users. Because LNG is potentially hazardous, siting of these import terminals has become a contentious issue. For some time, the Federal Energy Regulatory Commission (FERC) has exercised primary jurisdiction over onshore LNG terminals, although other federal, state, and local agencies have played significant roles as well. The California Public Utilities Commission (CPUC), among others, has advanced several arguments contending that FERC's jurisdiction over LNG import facilities under section 3 of the Natural Gas Act (NGA) has been removed by the Energy Policy Act of 1992 (EPAct) and has recently filed suit with the U.S. Court of Appeals for the District of Columbia Circuit. In relevant part, the EPAct amendments designate LNG imports as "first sales," deem LNG imports consistent with the public interest, and direct that applications to import LNG be approved without modification. These amendments potentially impact the statutory bases for FERC jurisdiction. The designation of LNG imports as "first sales" does serve to remove those imports from at least some NGA regulation, but it would seem a permissible interpretation of the statute to conclude that facilities used to complete first sales are not also exempted from regulation. Similarly, the CPUC argument that the ban on modifying LNG import applications removes Commission jurisdiction finds some support in case law, although, arguably, the statute is ambiguous and subject to FERC's interpretation. Should the Commission retain jurisdiction, it appears that FERC would generally have the authority to preempt conflicting state and local regulation. FERC has voiced its intention to accommodate state and local standards and to include state and local authorities to the furthest extent practicable. In addition, FERC has expressly confirmed that state regulation enacted pursuant to federal law, such as the Coastal Zone Management Act, is beyond agency preemption. Several pieces of legislation address LNG-related issues, including H.R. 6, H.R. 4503, S. 2095, H.R. 4520, and S. 1637. Recently introduced legislation, H.R. 4413, would essentially codify FERC's interpretation of its jurisdiction, although it would add several new authorities, including FERC authority to set an enforceable schedule for the completion of all necessary agency actions. This report will provide an overview of the current federal regulatory scheme, examine the legal arguments surrounding LNG facility siting jurisdiction, and describe the provisions of relevant pending legislation. It will be updated as necessary. [ABSTRACT FROM AUTHOR]

Methyl tertiary butyl ether (MTBE) is a fuel additive in wide use throughout the United States. Due to leakage from underground storage tanks and other sources of exposure, MTBE has been found in the drinking water supplies of several states. Whether to shield certain parties from MTBE-related liability proved controversial in the 108th Congress, and ultimately no legislation addressing the issue was enacted. 108th Congress legislation included S. 2095, S. 791, H.R. 3940, and H.R. 2253, each of which would have provided for the eventual discontinuation of the additive but did not provide parties associated with MTBE with any special protections from liability. Other 108th Congress legislation, including the conference-reported version of the Energy Policy Act of 2003 (H.R. 6) contained a safe- harbor provision protecting any potential defendant, such as MTBE manufacturers and distributors, from products liability claims. Additionally, the H.R. 6 provision included language applying the safe-harbor retroactively, potentially barring several pending lawsuits. Exemption from liability related to MTBE contamination remains controversial and may again become the subject of debate in the 109th Congress. Accordingly, this report analyzes the legal implications of the safe-harbor provision found in H.R. 6. This report will be updated as necessary. [ABSTRACT FROM AUTHOR]