To help reboot after the holiday break, here is a list of air topics we expect to make news in 2022 with a short discussion of why each one may be important to you.
Mack McGuffey
Natural Gas Processors to Report to EPA’s Toxic Release Inventory Beginning 2023
In a final rule published in the Federal Register on November 24, the Environmental Protection Agency (EPA) quietly finalized a hotly contested proposed rule, adding natural gas processing facilities to the list of industry sectors required to report their releases of certain chemicals under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), also known as the Toxic Release Inventory (TRI). Facilities must report releases and waste management of specifically listed chemicals to the TRI if they: (1) have 10 or more full-time employees, (2) have a primary Standard Industrial Classification (SIC) or North American Industry Classification System (NAICS) code listed in the regulations, and (3) manufacture, process, or otherwise use certain listed chemicals in the course of a calendar year in quantities exceeding identified thresholds.
EPA Issues Highly Anticipated Methane Rule for the Oil and Gas Sector
Earlier this week, EPA published its proposed new methane regulations for the oil and gas sector. These new rules will have significant practical implications for the industry and have the potential to set new precedent for EPA’s authority under the Clean Air Act to address climate change for other industries as well. While the proposal is over 150 pages long, it does not include the actual text of the proposed rules, promising instead to provide proposed text in a supplemental notice early next year.
Supreme Court Will Hear Controversy Over EPA Regulation of Greenhouse Gases from Existing Power Plants
The U.S. Supreme Court has elected to hear a legal dispute over the scope of the authority granted to the Environmental Protection Agency (EPA) under the Clean Air Act to regulate greenhouse gas (GHG) emissions from existing power plants. In orders issued October 29, the Court granted certiorari to four petitioners — West Virginia, North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings LLC — seeking reversal of a September 2020 D.C. Circuit Court of Appeals decision striking down the Affordable Clean Energy (ACE) rule.
Biden EPA Decides to Keep a Trump EPA NSR Rule … For Now
The Biden EPA just did something unexpected — it decided to keep a Trump EPA rule, at least for the time being. The rule, known as “project emissions accounting” under the “New Source Review” (NSR) air permitting program, allows sources of air emissions to avoid permitting by using emission decreases to offset an increase that would otherwise need a permit. While largely procedural in nature, EPA’s decision to keep the rule is notable for a few reasons.
Penalizing Unavoidable Air Emissions: The Fight Over SSM Continues
At the end of September, the Environmental Protection Agency (EPA) issued yet another memorandum regarding emissions resulting from startup, shutdown, and malfunctions (SSM) at stationary sources of air pollutants, such as refineries, manufacturing facilities, and power plants. This newest memo announces a return to the policy EPA announced in 2015, when it asked 45 states and local jurisdictions to change their locally written and previously EPA-approved rules. EPA’s goal in 2015 was to eliminate state rules that allow relief from penalties for “SSM” emissions. In 2020, the Trump EPA issued a memo allowing such rules under certain circumstances, but the newest EPA memo puts those rules back on the chopping block. This post provides a brief recap of the long-running debate over SSM emissions and a look forward into what is to come under EPA’s latest policy shift.
Troutman Pepper Environmental Attorneys Author Articles in ABA’s Natural Resources & Environment Summer 2021 Edition
In their article “Are We There Yet? The Challenges of Litigating Clean Air Act Rules,” Mack McGuffey and Melissa Horne discuss the difficulties of getting final answers from the courts in the increasingly polarized political environment of Clean Air Act rulemaking.
Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?
The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions.
What’s Next? EPA’s Air Agenda Highlights Priorities
Now that we’re past July 4th and on the downhill side of summer, thoughts are turning to what EPA and the courts might do this fall with the many air quality and climate change issues before them. Here is a list of some of the most closely watched rulemakings on EPA’s recently released regulatory agenda and some key issues to watch for under the new Biden EPA. The ID numbers below for each agenda item contain links that will take you directly to the webpage tracking the status of the action.
Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules
Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process Rule” (Cost-Benefit Rule), a requirement governing cost-benefit analyses for Clean Air Act (CAA) rulemakings, and on May 18, the agency revoked the “EPA Guidance; Administrative Procedures for Issuance and Public Petitions Rule” (Guidance Document Rule), which required all “significant” EPA guidance to undergo a public notice and comment process prior to issuance, modification, or withdrawal.