In the last month of 2018, EPA released two proposals that it claims will have no immediate effect—revised CO2 standards for new coal-fired power plants that EPA does not expect anyone to build, and a determination that it is not “appropriate and necessary” to have a mercury rule that it nevertheless plans to keep on the books. The question many may be asking is why EPA would issue two highly controversial rules if they won’t have any practical effect? The answer may lie in the precedent they will set.
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”). The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect. The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.
The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service (FWS) can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.
This morning, the Environmental Protection Agency (EPA) released its proposed replacement for the Clean Power Plan (CPP) titled the “Affordable Clean Energy Rule,” which would regulate greenhouse gas emissions at existing coal-fired power plants. The proposed rule gives discretion to states for determining the greenhouse gas performance standards achievable for existing coal-fired power plants within their state. Specifically, the proposed rule would require states to evaluate a menu of heat rate improvement options and, taking into account the unit’s remaining useful life and other factors, determine the lb/MWh CO2 emission rate achievable at each affected unit. While the rule proposes to allow for emissions averaging among affected units at an individual source, it does not provide for broader averaging or emissions trading. To facilitate the heat rate improvement projects, EPA also has proposed an option for states to adopt a new emissions test under the New Source Review program for EGUs that is based on both hourly and annual emissions.
On July 30, the United States Fish and Wild Service (“USFWS”) published notices in the Federal Register withdrawing the USFWS Mitigation Policy and the Endangered Species Act Compensatory Mitigation Policy (“ESA-CMP”). Both of these policies were published in late 2016, at the tail end of the Obama Administration.
On July 20, the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three proposed rules that would significantly affect applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.
In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these proposed changes appear directly responsive to negative court precedent from the Ninth Circuit that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration. Continue Reading Trump Administration Proposes Broad Changes to Endangered Species Act
On June 11, 2018, the Supreme Court summarily affirmed the Ninth Circuit’s opinion in United States v. Washington through a 4-4 split, with Justice Kennedy taking no part in the decision due to his involvement in similar cases during his time as a circuit judge on the Ninth Circuit. The immediate effect of the high court’s decision will be to require the State of Washington to replace or modify, at the State’s expense, several hundred culverts placed in streams under roads and bridges throughout the State. In the longer run, however, the decision could have much more far-reaching impacts related to federal and state obligations to protect against habitat degradation of salmon and other aquatic species pursuant to their obligations under several Nineteenth Century treaties reached with Native American Tribes in the Pacific Northwest.
On Friday, May 11, California’s Department of Toxic Substances Control (DTSC) issued a notice that it is considering listing laundry detergent that includes nonylphenol ethoxylates (NPE) as a “priority product” under its Safer Consumer Products regulations. If DTSC finalizes a rule listing the product, it will kick off an alternatives assessment process, during which manufacturers, sellers, importers, and distributors of the product will have to evaluate alternatives to the use of NPE, and which may result in DTSC concluding that NPE in laundry detergent should be phased out and replaced with a “safer” alternative. Regardless, the alternatives assessment process is a time-consuming and cost-intensive process, and will be subject to a lot of scrutiny from DTSC and third parties.
On April 26, 2018, the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum addressing the need for an incidental take permit (“ITP”) under the Endangered Species Act (ESA) for the modification of listed species’ habitat (“ITP Memo”). As background, under the ESA, the “take” of an endangered species is prohibited. This prohibition has been extended to threatened species through a blanket 4(d) rule. In certain circumstances, take that is not purposeful and occurs incidental to some other action can be authorized through the issuance of an ITP.
On March 31, 2018, the District Court for the District of Columbia ordered the Environmental Protection Agency (“EPA”) to complete a residual risk and technology review (“RTR”) by October 1, 2021 for nine source categories of hazardous air pollutants (“HAPs”). The specific source categories at the center of this challenge were:
• Primary Copper Smelting
• Carbon Black Production
• Cyanide Chemicals Manufacturing
• Spandex Production
• Flexible Polyurethane Foam Fabrication Operations
• Refractory Products Manufacturing
• Semiconductor Manufacturing
• Primary Magnesium Manufacturing
• Mercury Cell Chlor-Alkali Plants
Section 112 of the Clean Air Act establishes a two-stage process for regulating HAPs from stationary sources. In the first stage, EPA is required to develop technology-based standards, known as MACT standards, for specified industrial source categories. In the second stage, EPA must reassess those standards eight years after they are promulgated. This second stage is itself divided into two distinct processes: a one-time residual risk review and a technology review to be conducted every eight years.
The deadlines for these sources were seven to eight years past due. Thus, plaintiff environmental groups claimed that EPA violated the CAA because it failed to timely issue the RTRs, and they proposed an intense schedule for EPA to complete the rulemakings. Plaintiffs proposed that EPA promulgate final rules for five source categories by March 31, 2019, and for the remaining four source categories by March 31, 2020. While EPA did not disagree that the rulemakings were past due, the Agency argued that the proposed timeline was impossible to meet because of the limited resources at the Agency’s disposal and the complexities involved in these types of rulemakings. Because of these restraints, EPA requested seven years to complete the nine rulemakings, proposing nine specific dates with the earliest rule due by July 22, 2022 and the latest due by January 16, 2025.
The court held that EPA failed to demonstrate that it was impossible to issue the rulemakings in a timely manner. However, it found that the plaintiffs’ timeline was “much too draconian.” Therefore, the court set its own timeline, requiring EPA to begin the rulemakings by January 1, 2019 and issue final rules for all nine source categories no later than October 1, 2021, in less than four years. Importantly, the court gave EPA some flexibility by allowing the Agency to “move for an extension of the deadlines” if it needs more time.