A federal judge last week upheld the constitutionality of the Congressional Review Act (CRA), a law that Congress has used recently to overturn more than a dozen federal regulations from the Obama Administration. Under the CRA, Congress, by a majority vote, can disapprove a federal regulation if it does so within sixty legislative days after the regulation was adopted. Once Congress disapproves a regulation, it cannot be readopted in substantially similar form.
The U.S. EPA has adopted final nonattainment designations for 51 areas across the country for the agency’s 2015 national ambient air quality standards (NAAQS) for ozone. In a previous action, EPA had issued its attainment and unclassifiable designations, finding that 85% of the nation’s counties qualify for one of those designations (a designation of unclassifiable means that the agency does not have enough information to determine whether the areas is in attainment or. nonattainment). Still to come, likely by July 17, 2018, is action by EPA on eight counties around San Antonio, Texas.
On April 17, 2010 EPA issued a guidance document on the implementation of significant impact levels (“SIL”) for ozone and fine particles. Under EPA’s air pollution permitting regime known as “New Source Review,” SIL values are one way to demonstrate that a new facility or modification of an existing facility will not cause a violation of the National Ambient Air Quality Standards (“NAAQS”) or Prevention of Significant Deterioration (“PSD”) increments for a regulated pollutant. In short, if a source’s “projected impact on air quality” is below the “SIL,” the source is deemed to have no significant impact on air quality. If a source’s impacts are above the SIL, far more extensive modeling analyses are needed to demonstrate compliance, so the SIL helps streamline the permitting process for projects that can meet it.
On February 14, 2018, the House Committee on Energy and Commerce held a hearing on the Environmental Protection Agency’s (“EPA”) New Source Review (“NSR”) permitting program as an initial step towards NSR reform. See https://energycommerce.house.gov/hearings/new-source-review-permitting-challenges-manufacturing-infrastructure/. Six witnesses presented testimony at the hearing, with four in favor of and two against reform. There is wide anticipation that EPA will move to adopt some sort of reform of the NSR program, although exactly how and when is not known. The EPA Administrator this past December issued a Memorandum to the EPA regional administrators providing guidance on “Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability,” and it is expected that further guidance or rulemakings may be forthcoming. In addition, it is expected that a new effort will be made to reform the program through legislation, with Rep. Morgan Griffith (R-Va.) having introduced two bills last June on that subject.
On October 10, EPA Administrator Scott Pruitt signed a proposal to repeal the Clean Power Plan (CPP). The CPP was one of the Obama Administration’s signature environmental regulatory initiatives, designed to reduce CO2 emissions from fossil-fueled electric generating stations. The repeal proposal asks for public comments within 60 days from the day it is published in the Federal Register. It is expected that it will be published relatively quickly in the coming weeks.
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 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater. 80 Fed. Reg. 67838 (Nov. 3, 2015).
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.
The federal appellate court hearing the appeal of EPA’s “Section 111(b)” regulations establishing a carbon capture and storage “new source performance standard” for new coal-fueled electric generating stations has today suspended the April 17, 2017 date for oral argument in the case. The U.S. Court of Appeals for the D.C. Circuit said it was suspending the oral argument date pending its consideration of EPA’s motion to hold the case in abeyance in light of President Trump’s recent Executive Order ordering EPA to review the Section 111(b) rule and the Clean Power Plan. EPA’s abeyance motion was filed Tuesday night, and today all of the State and industry petitioners challenging the rule filed a response in support of the motion. States and environmental interest groups supporting the Section 111(b) rule have not yet filed formal oppositions to the abeyance motion but have indicated they intend to do so. The court’s action does not mean that it will grant EPA’s request to hold the case in abeyance, only that it does not wish to proceed with oral argument at this time while it considers the future of the case.
The court’s action also does not affect the parallel EPA motion to hold the Clean Power Plan in abeyance. No responses to that motion have yet been filed.