In an October 16, 2017 order signed by EPA Administrator Scott Pruitt, EPA reversed a position it has held for many years — that the Agency has authority, in the context of Title V permitting, to review previous state-level decisions on the applicability of new source permitting requirements. The new policy outlined in the October 16 order removes the Title V petition to object as an avenue for citizens to seek EPA review of state preconstruction permitting decisions.
The battle over regional haze in Texas continued this week, as EPA published a final rule for the state to address visibility degradation in its national parks. The rule itself appears relatively plain on its face—it simply approves for Texas a regional haze policy that is similar to what EPA has approved for many other states. That is, it deems compliance with an emission trading program to be sufficient to satisfy the regional haze requirement for Best Available Retrofit Technology (BART). However, the Texas rule is the most recent and obvious indication that the Trump EPA is taking a very different tack on regional haze than the Obama EPA.
The DC Circuit issued a decision on July 3, 2017, vacating the 90-day stay of the Oil & Gas Industry NSPS rules – the first rules to regulate methane from that sector. In a June 5 Federal Register notice, the new Trump EPA stayed the rules pending reconsideration under Section 307(d) of the Clean Air Act. Environmental Groups filed an emergency challenge to the stay, asking for either a stay of that decision or summary vacatur of it. Issuing its decision less than a month later, the court vacated EPA’s stay of the rules.
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
Today, the U.S. Court of Appeals for the District of Columbia Circuit issued orders holding litigation challenging two major climate regulations in abeyance—the “Clean Power Plan” and the “Carbon Pollution Standards” for new and modified electric generating units. Both rules were critical components of the Obama Administration’s climate change agenda by requiring steep cuts in CO2 emissions from existing and new power plants, respectively. In the orders, the court granted EPA’s motion to hold the case in abeyance, but only for 60 days. The court also ordered EPA to file status reports every 30 days. The court further directed the parties to submit supplemental briefs by May 15th to address whether the cases should be remanded to EPA instead of held in abeyance.
The orders can be found at the following links: Clean Power Plan & Carbon Pollution Standards. For more information or questions on these cases, please contact Peter Glaser, Margaret Campbell, or Mack McGuffey.
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.
Following up on its recent promise to evaluate all existing regulations and reduce regulatory burden, EPA held a public teleconference on April 24th to take ideas on reforming its air-related regulations. The call was scheduled for three hours, with each commenter limited to three minutes. The commenters essentially fell into two categories—environmental interest groups criticizing any attempts at what they view as a roll-back of important environmental protections, or businesses and industry groups citing specific regulations and guidance that should be reviewed and revised. For example, David Doniger of the Natural Resource Defense Council expressed support for EPA’s climate regulations and encouraged EPA to “do its job,” while Andrea Field of the Utility Air Regulatory Group sought specific review and reform of the CO2 standards for new power plants, the mandatory greenhouse gas reporting rule, the Cross-State Air Pollution (CSAPR) Update Rule, visibility regulations, and pre-construction permitting requirements. Other important rules mentioned by industry commenters included EPA’s methane standards for oil and gas production facilities, EPA’s national ambient air quality standards for ozone and particulate matter, the renewable fuels program, the maximum achievable control technology standards for industrial boilers, and EPA’s guidance on the use of dispersion modeling to assess air quality impacts. Written comments in response to EPA’s request are due May 15, 2017, although several commenters have already requested more time.
If you have any questions regarding the EPA teleconference, please contact Mack McGuffey at (404) 885-3698.
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.”