In the News

Haynes and Boone in the Texas Lawyer: Power Players: Texas Energy Attorneys Prepare to Advise Clients on Obama Administration's Climate-Change Proposals

Texas energy and environmental lawyers say the Obama administration's climate change proposals, unveiled earlier this month, offer a lot of fodder for client discussions, and they expect future lawsuits to target the federal government's new plans. >>

Haynes and Boone Lawyers Contribute to Third Edition of Thomson Reuters Texas Environmental Law Treatise

AUSTIN – Five Haynes and Boone, LLP lawyers, led by Austin Partner Jeff Civins, participated in the preparation of the recently released third edition of the Texas Environmental Law treatise published by Thomson Reuters as Volumes 45 and 46 of its Texas Practice Series. >>



Recent Publications

Supreme Court Strikes Down Greenhouse Gas Permitting

A divided Supreme Court held that the Environmental Protection Agency (EPA) exceeded its authority under the Clean Air Act (CAA) when it required certain sources emitting greenhouse gases (GHG) to obtain permits under the Prevention of Significant Deterioration (PSD) and Title V Operating Permits (Title V) programs. >>



James D. Braddock

Counsel

Austin


600 Congress Avenue
Suite 1300
Austin, Texas 78701
T +1 512.867.8462
F +1 512.867.8692

James D. Braddock

James Braddock has more than thirty years experience in environmental law with extensive experience in air quality issues. In his fifteen years as an attorney with the Texas Air Control Board, including his role as General Counsel of that agency, James was extensively involved with both state and federal air quality regulations and gained substantial experience in administrative law matters including the Open Meetings Act, Open Records Act and rule making requirements.

James has represented a wide range of clients including airports, refineries, oil and gas operations, asphalt plants, manufacturing operations, and coating operations in both litigation and transactional matters that implicate air quality considerations. He has assisted clients in rule making activities, obtaining permits, and defending against allegations of noncompliance.

Selected Client Representations

  • Negotiating substantial reductions in proposed administrative penalties for environmental matters;
  • Obtaining a favorable ruling allowing a client in an ozone nonattainment area to retain existing technology instead of having to incur substantial additional expenditures for new technology;
  • Assisting clients in obtaining permits through the contested case hearing process;
  • Assisting clients in obtaining permits without the necessity of a contested case hearing;
  • Assisting clients in protecting the confidentiality of records from disclosure under the Texas Open Records Act and the federal Freedom of Information Act.
  • Successful appeals of TCEQ compliance history classification.

Recent Publications

  • “Environmental Issues Update for the Gas and Power Industry,” James Braddock and Mary Simmons Mendoza; 11th Annual Gas and Power Institute, August 23-24, 2012, Houston, Texas.
  • "Climate Change: Regulation of Greenhouse Gases," Texas Environmental Law Journal, publication pending.
  • "Understanding Today's Clean Air Act Permit Programs," Boiler MACT ("Three Steps Forward, Two Steps Back"), Air & Waste Management Association, Houston, Texas, April 13-14, 2011.
  • "Greenhouse Gas Permitting in Texas – What Now?" Carbon and Climate Change, UT CLE, Austin, Texas, February 10, 2011.
  • "Federal and State Air Quality Practice," Energy Law Symposium, Texas Journal of Oil, Gas, and Energy Law, January 20-21, 2011.
  • "Climate Change Regulation – 'The Circus has come to Town,'" 14th Annual Air & Waste Management Association, Gulf Coast Chapter, Hot Air Topics Conference, Houston, Texas, January 13, 2011.
  • "Overview of State Air Permit Programs," Air Quality, UT CLE, Austin, Texas, November 19, 2010.
  • "State Environmental Framework for Energy Projects," Essential Administrative and Environmental Law for Energy Projects, UT CLE , Austin, Texas, November 18, 2010 and Houston, Texas, December 1, 2010.
  • "Climate Change – When I See an Elephant Fly," Texas Environmental Superconference, Austin, Texas, August 5, 2010.

Professional Recognition

  • Recognized by Chambers USA 2009-2014 as one of the leading practitioners in the United States for Environment
  • Best Lawyers in America - Environmental Law, 2005-2014
  • Martindale Hubbell® Law Directory with a Peer Review Rating of AV® Preeminent™
  • Who's Who Legal: USA – Environment, 2009
  • Texas Super Lawyer - Environmental, Administrative Law, 2011-2013

Selected Representative Experience


Freeport Power Refinancing
Acted as lenders counsel in the refinancing of an inside-the-fence cogeneration facility located in Freeport, Texas. Transaction involved (i) analyzing and advising the lenders on the underlying project documents and relevant regulatory requirements, (ii) advising the lenders on loan and security documents as they relate to Texas law, and (iii) preparing the Deed of Trust and other Texas security filings. Mizho Bank, Ltd. acted as mandated lead arranger and administrative agent, Sumitomo Mitsui Banking Corporation acted as mandated lead arranger and documentation agent, and the Bank of Tokyo-Mitsubishi UFJ, Ltd. acted as mandated lead arranger, technical bank, insurance bank, and modeling bank. Other parties involved in the transaction included Freeport Power Limited, as borrower, GDF Suez Energy North America and Toyota Tsusho Corporation (through subsidiaries), as project sponsors, and The Dow Chemical Company, as lessor, operator, and toller.

Deutsche Bank/Green Energy Team Hawaii Biomass Project
Represented Deutsche Bank Securities Inc., as Mandated Lead Arranger and Lender for a $76.1 million loan facility to fund construction of a 7.5-megawatt (net) biomass-to-energy facility on the island of Kaua'i, Hawaii.

Memberships

  • Air and Waste Management Association
  • Natural Resources Energy and Environmental Law Section of the American Bar Association
  • Environmental and Natural Resources and Public Law Sections of the State Bar of Texas


Online Publications

06/24/2014 - Supreme Court Strikes Down Greenhouse Gas Permitting
A divided Supreme Court held that the Environmental Protection Agency (EPA) exceeded its authority under the Clean Air Act (CAA) when it required certain sources emitting greenhouse gases (GHG) to obtain permits under the Prevention of Significant Deterioration (PSD) and Title V Operating Permits (Title V) programs.

06/18/2014 - EPA Greenhouse Gas Proposal Published - the Clock is Now Ticking
Consistent with President Obama’s Climate Action Plan, EPA today published two sets of proposed rules, which it refers to as “carbon pollution standards,” relating to greenhouse gas emissions from fossil fuel-fired electric generating units - for existing stationary sources (79 Fed. Reg. 3480) and for modified and reconstructed sources (79 Fed. Reg. 34980).

07/26/2012 - TCEQ Announces Opportunity for Regulated Entities to Register to Review their Compliance History Ratings Prior to Release to the Public
Pursuant to statutory changes enacted in its 2011 Sunset Review, the TCEQ has created a website that allows companies and persons subject to its regulations to review the agency’s proposed compliance history rating, for a 30-day period prior to that rating being made available to the public.

04/20/2012 - Oil and Gas Operations, Including Hydraulic Fracturing, Subject to New Air Quality Regulation - EPA Issues Final Rules Under the New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Programs
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on April 17, signed final rules that subject additional oil and gas operations, including hydraulic fracturing, to air quality regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) programs, and impose new and amended requirements under both programs.

04/02/2012 - EPA Proposes Greenhouse Gas Emission Standards for New Electric Generating Units
In response to a court order, EPA has announced proposed rules that would establish new source performance standards (“NSPS”) applicable to greenhouse gas emissions from new, fossil fuel-fired power plants (“power plants”). The proposal is a highly controversial one, which will effectively prohibit the construction of coal-fired power plants that do not capture carbon.

03/30/2012 - Court Strikes Down EPA Disapproval of Texas Air Quality Standard Permit for Pollution Control Projects
On March 26, 2012, the Fifth Circuit Court of Appeals (“the Court”) vacated and remanded EPA’s disapproval of Texas’s request for approval of the minor source standard permit for pollution control projects (“PCP”) as part of its air quality state implementation plan (“SIP”). The Court’s reasoning may also affect other pending disputes between EPA and Texas regarding air quality permitting and other issues.

08/11/2011 - New EPA Oil and Gas Air Quality Standards
In order to comply with a court-ordered schedule, EPA Administrator Lisa Jackson on July 28 signed a 604-page package that proposes to subject additional oil and gas operations to regulation under the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPS) programs and to impose new and amended requirements under both programs.

06/21/2011 - American Electric Power v. Connecticut: Greenhouse Gas Regulation Derails Common Law Claims
On June 20, 2011, Justice Ginsburg delivered the unanimous opinion of the U.S. Supreme Court in American Electric Power Company, Inc. v. Connecticut, holding that the Clean Air Act and EPA action under it displaced the federal common law nuisance claims against CO2 emitters that plaintiffs sought to pursue.

08/31/2010 - August 31, 2010 TCEQ Meeting to Discuss Oil And Gas Air Quality Permitting Changes
The TCEQ will hold an informational meeting today (August 31) from 9:30 A.M. until 3:00 P.M. (CST), to discuss the proposed changes to the air quality permit by rule and standard permit for oil and gas production facilities.

08/05/2010 - EPA/TCEQ Dispute Over Greenhouse Gas Emissions Heats Up
The public dispute between EPA and the Texas Commission on Environmental Quality (TCEQ) over air quality issues continues to intensify. The latest salvo is a strongly worded letter from the state of Texas to EPA on the issue of air quality permitting of greenhouse gases.

05/25/2010 - U.S. Senate Bill Looks to Move Cap-and-Trade Plans Forward - EPA Issues Final Tailoring Rule
There have been two significant new developments in the regulation of greenhouse gases (“GHG”). One is the long awaited introduction of new draft legislation that sponsors hope will bridge the disagreements that have prevented the passage of comprehensive GHG legislation. The other is the issuance, on May 13, 2010, of EPA’s greenhouse gas tailoring rule, the final piece of EPA’s multiple promulgations to commence control of GHG from stationary sources.

04/06/2010 - TCEQ Proposes Restrictions on Standard Permits and Permits By Rule
On April 14, 2010, the Texas Commission on Environmental Quality (“TCEQ”) Commissioners are scheduled to consider proposing new rules that would significantly restrict the ability of companies who rely upon Standard Permits and Permits by Rule (“PBR”) for air quality authorizations to install new facilities or expand or modify existing facilities.

03/30/2010 - EPA Sets Timeline for Regulating Greenhouse Gases in Permits
The EPA said Monday that it will begin regulating greenhouse gas emissions no earlier than January 2, 2011. The EPA announcement came in its March 29, 2010 decision regarding reconsideration of the December 18, 2008 memorandum from then EPA Administrator Stephen Johnson (“the Johnson Memorandum”) that addressed when air pollutants become regulated pollutants under the federal Clean Air Act (“the Act”).

03/25/2010 - More Proposed Regulation of Oil and Gas Operations: Greenhouse Gas Reporting and Changes to Air Permits
Over the last several years, the environmental agencies have increased their focus on air quality issues associated with oil and gas production activities. On March 23, 2010, both EPA and the TCEQ announced new proposals that would increase air quality regulation of the oil and gas industry.

01/08/2010 - EPA Proposes Revised Ozone Standard
On Jan. 6, Environmental Protection Agency Administrator Lisa Jackson announced that the EPA is proposing to revise downward the primary National Ambient Air Quality Standard (NAAQS) for ozone. The primary standard was established to protect human health. The agency also proposes to develop a new secondary standard, established to protect public welfare. 

12/07/2009 - EPA Issues Greenhouse Gas Endangerment Finding
On December 7, 2009, EPA Administrator Lisa Jackson announced EPA’s finding that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (“the endangerment finding”). Administrator Jackson also made a related finding that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (“the cause or contribute finding”). These findings have far reaching impacts on commercial and industrial operations, including many that have not previously been regulated under the federal Clean Air Act (“CAA”).

10/02/2009 - Greenhouse Gas (GHG) Regulatory Update: Three New Proposed Actions Continue the Debate
Greenhouse gas (“GHG”) regulatory developments to address climate change concerns continue. On September 23, 2009, we noted EPA had finalized its GHG reporting rules. On September 30, 2009, three new proposals were released, two of which, if adopted, would initiate air quality regulation of GHGs.

09/23/2009 - EPA Releases Final Rules for Reporting Greenhouse Gas Emissions
On September 22, 2009, EPA released its final rules for the reporting of greenhouse gas (GHG) emissions, impacting a wide range of businesses. The importance of these reporting requirements is enhanced because of the likelihood that either Congress will adopt a cap and trade GHG reduction program, EPA will move to regulate GHG under the existing federal Clean Air Act, or both.

09/11/2009 - EPA Proposes Disapproval of Certain Texas Air Quality Permitting Programs
In a widely publicized announcement, EPA is proposing to formally disapprove certain aspects of the air quality permitting of the Texas Commission on Environmental Quality (“TCEQ”). If adopted, the EPA proposal could have significant ramifications for companies that have relied upon those aspects of the Texas program that provide flexibility for making changes at existing plants without the need for amending existing permits.

07/08/2009 - House Passes American Clean Energy and Security Act
On June 26th, the House of Representatives narrowly passed the American Clean Energy and Security Act (“ACES”), H.R. 2454. The bill will next be considered by the Senate, with some predicting a full Senate vote held in October. Because of the significance of this bill and the material effect it will have on many sectors of the economy, we thought it would be useful to summarize the House-passed version.

04/20/2009 - EPA Proposes Greenhouse Gas Endangerment Finding and that Greenhouse Gases from Motor Vehicles Contribute to Air Pollution
On April 17, 2009, EPA Administrator Lisa Jackson issued a long awaited proposal that would have EPA formally “find” that emissions of greenhouse gases may reasonably be anticipated to endanger public health and welfare (the “endangerment finding”). Administrator Jackson also issued a related proposal that would have EPA determine that emissions of certain greenhouse gases from motor vehicles contribute to air pollution (the “cause or contribute finding”). These proposals are the latest developments in the controversial issue of whether EPA should regulate greenhouse gases to protect against the adverse impacts of global warming and are sure to generate significant debate.

04/01/2009 - Draft Global Warming Bill Released
On March 31, 2009, U.S. Representatives Waxman and Markey released draft global warming legislation: The American Clean Energy and Security Act of 2009. The 648-page draft bill consists of four titles addressing clean energy, energy efficiency, reducing global warming pollution, and transitioning to a clean energy economy.

03/16/2009 - EPA Proposes Rule for Greenhouse Gas Emissions Reporting
On March 10, 2009, EPA released its proposed rule for the reporting of greenhouse gas (GHG) emissions. This proposed rule is mandated by the Fiscal Year 2008 Consolidated Appropriations Act (H.R. 2764; Public Law 110-161) and will require a wide range of businesses to track and report their GHG emissions.

02/18/2009 - EPA Reconsideration of Carbon Dioxide in Air Quality Permits
On February 17, 2009, EPA Administrator Lisa Jackson issued a response to the Sierra Club’s Petition for Reconsideration of the December 18, 2008 memorandum issued by Ms. Jackson’s predecessor, Stephen Johnson (“the Johnson memorandum”), regarding reviewing carbon dioxide in air quality Prevention of Significant Deterioration (“PSD”) permits. This action is of interest to those seeking PSD permits, as well as those concerned about carbon dioxide regulation generally.

02/06/2009 - Justice Department Targets Coal-Fired Power Plants
Since the November elections, there has been intense speculation regarding what environmental policies the Obama administration might adopt, particularly those involving enforcement and coal-fired power plants. An indicator of what is to come may be the February 4, 2009 announcement from the Department of Justice that it is filing a Clean Air Act enforcement action against Westar Energy for alleged violations of the new source review (“NSR”) permit requirements at a coal-fired power plant in Kansas.

12/29/2008 - Clean Air Interstate Rule Reinstated
In an unusual action, the U.S. Court of Appeals for the District of Columbia reversed its earlier ruling that would have vacated the entirety of the Clean Air Interstate Rule (“CAIR”).

12/22/2008 - EPA Administrator Says Carbon Dioxide is not a “Regulated Pollutant”
In a December 18, 2008 interpretative memorandum, EPA Administrator Stephen Johnson provided an answer to the Environmental Appeals Board’s decision on In re: Deseret.

12/03/2008 - EAB’s Decision Leaves Permitting Up in the Air
In its recent decision in In re: Deseret Power Electric Cooperative, the Environmental Appeals Board (“EAB”) of the U.S. Environmental Protection Agency (“EPA”) addressed whether and to what extent CO2 emissions needed to be considered in air quality permitting. 

TCEQ Proposes Guidance on Floating Roof Tank Emissions

Evidence Preservation at the Site of an Accident

11/07/2003 - TCEQ Compliance History Annual Updates: A New Opportunity for Appeal

12/05/2002 - Compliance - TCEQ Revises Rules to Require Submission of Form (PI-8)

12/05/2002 - Air Quality - TCEQ Revises Rules to Require Submission of Form (PI-8)

05/06/2002 - Clean Air Act Developments

08/01/2000 - Air Quality - Air Quality Issue for Local Governments

05/11/2000 - Air Quality - Keep perspective in air-pollution debate

05/07/1999 - Air Quality - Blowin’ in the Wind: Texas Regulation of Air Quality