Yesterday, the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit” or “the court”) vacated a federal district court’s order requiring EPA to account for the economic impacts of Clean Air Act (“CAA”) regulations. This decision stems from a suit filed by coal companies claiming that EPA had failed to perform a non-discretionary duty by completing continuous evaluations of job losses and plant closures resulting from CAA implementation or enforcement as required under Section 321 of the CAA. In a strongly worded opinion, the district court ordered EPA to come into compliance with the requirements of Section 321 by July 2017, an order that EPA subsequently appealed to the Fourth Circuit.
In the Rose Garden of the White House, President Trump fulfilled a key campaign promise today by confirming that the United States will begin withdrawing from the Paris Climate Change Agreement (“Agreement”). President Trump cited the Agreement’s potential financial and economic burdens as a key reason for the withdrawal. Continue Reading U.S. to Withdraw from Paris Climate Deal
On April 24th, the U.S. Court of Appeals for the District of Columbia Circuit issued an order indefinitely delaying oral argument and holding in abeyance litigation over EPA’s 2015 Startup, Shutdown and Malfunction (SSM) Rule. The order comes in response to EPA’s request for a continuance to allow it to review the SSM Rule for possible modification or repeal. EPA must file status reports on its review of the SSM Rule at 90-day intervals beginning 90 days from the date of the order. Within 30 days of EPA informing the court of what action it has or will take with respect to the rule, parties to the litigation must file motions to govern future proceedings.
In a split decision, a California appellate panel recently affirmed a lower court’s decision upholding the state’s greenhouse gas cap-and-trade program. Challengers, including the California Chamber of Commerce, the National Association of Manufacturers, and the Pacific Legal Foundation, argued that: (1) the California Air Resources Board (CARB) acted outside of its authority when it created a cap-and-trade program that included an auction of emission allowances, and (2) the revenue generated from the auction sales constitutes an impermissible tax. California’s Proposition 13 requires taxes to be approved by a two-thirds vote of each house of the legislature.
In an April 18th letter to petitioners who requested reconsideration of EPA’s Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources Rule, EPA Administrator Scott Pruitt announced the agency’s intent to convene a proceeding for reconsideration of the rule’s fugitive emissions monitoring requirements. In its current form, the rule imposes limits on methane, volatile organic compounds and toxic air emissions from new, modified and reconstructed sources in the oil and natural gas industry. EPA also plans to issue a 90-day stay of the compliance date for the fugitive emissions monitoring requirements.
On April 18th, EPA filed motions in separate cases asking the D.C. Circuit Court of Appeals to delay pending litigation over two Clean Air Act (CAA) rules. In one case, EPA asked the court to delay oral argument, scheduled for May 18th, in the litigation challenging its supplemental findings regarding the cost of the Mercury and Air Toxics Standards (MATS) Rule, which regulates hazardous air pollutant emissions from coal- and oil-fired power plants. EPA argues that a continuance is appropriate because it intends to review the supplemental finding for possible modification or repeal, citing President Trump’s recent “Executive Order on Promoting Energy Independence and Economic Growth.”
The EPA published a notice in the April 13th Federal Register requesting public comments on regulations that may be appropriate for repeal, replacement, or modification. This request follows President Trump’s February 24th Executive Order that, among other things, requires federal agencies to establish a Regulatory Reform Task Force (“Task Force”) to make recommendations targeting specific federal regulations for elimination or modification. Task Forces must seek input from entities affected by federal regulations, including businesses, consumers, non-governmental organizations and trade associations. EPA’s Task Force is requesting comments on regulations that eliminate jobs or stifle their creation, impose costs that exceed benefits, implement Executive Orders or other Presidential directives that have been rescinded or modified, or are otherwise ineffective or outdated. Comments will be accepted through May 15.
In an April 11, 2017 Order, the D.C. Circuit Court of Appeals granted EPA’s petition to indefinitely delay oral argument in the Ozone NAAQS litigation. Originally scheduled for February 16, 2017, oral argument was rescheduled for April 19, 2017. EPA petitioned the court to further delay oral argument because it intends to review the NAAQS rule. In granting EPA’s request, the court ordered that the NAAQS litigation be held in abeyance. EPA must file status reports on its review of the NAAQS rule at 90-day intervals, beginning 90 days from this Order. Within 30 days of EPA informing the court of what action it has or will take with respect to the rule, the parties must file motions to govern future proceedings. The court’s Order can be accessed here.
The Environmental Protection Agency (EPA) recently initiated actions in response to multiple Executive Orders issued by President Trump directing major regulatory reforms. In a staff memo intended to facilitate compliance with the “Enforcing the Regulatory Reform Agenda” Executive Order, EPA Administrator Scott Pruitt designated a Regulatory Reform Officer and established a Regulatory Reform Task Force to evaluate existing regulations and make recommendations regarding those that can be repealed, replaced or modified to reduce the burdens on the regulated community. Administrator Pruitt further directed the Offices of Air and Radiation, Land and Emergency Management, Chemical Safety and Pollution Prevention, Water, Environmental Information, Congressional and Intergovernmental Relations and Small and Disadvantaged Business Utilization to provide the Task Force with recommendations for specific rules that should be targeted. Each of these offices must hold a dedicated public meeting and provide their recommendations by May 15th.
Last week, a federal district court ordered the Environmental Protection Agency (EPA) to complete its “risk and technology review” of existing hazardous air pollutant (HAP) rules for 20 industrial sectors within three years. The order comes in response to a lawsuit filed by environmentalists arguing that EPA is years overdue in completing reviews required by the Clean Air Act (CAA). Specifically, the CAA requires EPA to determine whether the HAP standards it has already adopted, though intended to be highly stringent, nevertheless still allow enough HAP emissions to present a risk to public health that may warrant additional restrictions. The industry sectors identified in the court’s order include municipal solid waste landfills, asphalt processing, and stationary combustion turbines. Whereas the challengers had sought a review schedule of one to two years, and EPA asked for a five-year schedule, the court selected a middle ground of three years for EPA to complete all of the reviews. Notably, that will require EPA to complete all of the reviews within the Trump administration.
A copy of the opinion is available here. If you have questions about this order, please contact Mack McGuffey or Andy Flavin.