Analysis and commentary on developments in environmental and natural resources law
2022 was a busy year for air quality and climate change policy, and 2023 promises to be no different. See below for a list of high-profile actions expected from EPA this year, along with a few you might not have on your radar screen.…
Continue Reading 2023 Air Quality and Climate Regulation Watch List
Need a refresher on key developments in 2022 to prepare you for what’s next in 2023? Here’s a rundown of some high-profile happenings, along with some you might have missed.…
Much ado is being made of recent amendments to the Clean Air Act (CAA) contained in the Biden administration’s budget reconciliation law passed in mid-August, commonly referred to as the Inflation Reduction Act (IRA). And with good reason, as the law includes the most significant changes to the CAA since 1990, and the new sections formally define greenhouse gases (GHGs) as an “air pollutant,” consistent with the Supreme Court’s 2007 decision in Massachusetts v. EPA.
However, the IRA amendments to the CAA do not in fact make significant substantive changes in law. Legally speaking, they can’t, given that the IRA is merely a reconciliation bill through which Congress may only assign funding. More to the point, none of the IRA amendments to the CAA address in any way the limitations the Supreme Court recently placed on EPA’s authority to adopt climate change regulation in West Virginia v. EPA, notwithstanding some characterizations to the contrary.…
EPA’s standards for hazardous air pollutant (HAP) emissions from industrial boilers have been controversial for nearly two decades. Ever since EPA first proposed “maximum achievable control technology” (MACT) standards for boilers in 2003, which were then entirely vacated by the D.C. Circuit, each new iteration of the rule has raised new legal issues and often foundered in court.
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Continue Reading EPA’s Final Industrial Boiler Rule Raises Controversial Topics
On June 28, a coalition of 11 environmental groups petitioned the U.S. Environmental Protection Agency (EPA) under the Administrative Procedure Act and the Clean Air Act to address the alleged failure of Texas Commission for Environmental Quality (TCEQ) to comply with and properly implement public participation and environmental justice requirements in its air permitting program. Specifically, the petition alleges that TCEQ violates the Clean Air Act and Title VI of the Civil Rights Act by: (1) restricting public participation in air permitting by limiting judicial review of permits; (2) allowing applicants to withhold public information during the permitting process; and (3) allowing facilities to operate under the state’s permits by rule (PBR) program, which provides no meaningful opportunity for public participation.
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Continue Reading Environmental Groups Target Texas Air Permitting Program on Environmental Justice Grounds
On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.
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Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate
The Securities and Exchange Commission (SEC or Commission) published proposed rules on March 21 that, for the first time, would codify the Commission’s expectations regarding what kinds of climate-related disclosures public companies must make in their required filings to the SEC. Prior to now, companies have had to rely on 2010 guidance from the Commission to determine what information they should disclose to investors regarding their climate-related risks.
Continue Reading SEC Publishes Proposed Rule Requiring Climate Disclosures
In a proposed rule signed on February 28, but not yet published in the Federal Register, EPA proposed to significantly expand its current approach to regulating the interstate transport of ozone. Under the so-called “good neighbor” provision of the Clean Air Act, states are required to submit State Implementation Plans (SIPs) to EPA containing rules sufficient to prohibit emissions from their state that would either significantly contribute to another state’s nonattainment of national ambient air quality standards or interfere with another state’s maintenance of those standards. If a state submits a SIP that is insufficient to satisfy its good neighbor obligation, EPA must issue a Federal Implementation Plan (FIP) to fully address the problem.
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Continue Reading EPA Proposes Significant Expansion to Interstate Ozone Transport Regulations
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.
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Continue Reading Welcome Back! These Are the Air Topics That Will Make News in 2022
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.
Continue Reading Natural Gas Processors to Report to EPA’s Toxic Release Inventory Beginning 2023
