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On August 7, Nebraska Attorney General (AG) Mike Hilgers and Iowa AG Brenna Bird joined forces to sue the Biden administration’s Environmental Protection Agency (EPA) for failing to fulfill the request by Iowa and Nebraska governors to allow the sale of year-round E15 gasoline.…

Continue Reading Nebraska and Iowa AGs Sue Biden Administration’s EPA for Failing to Fulfill Sale of Year-Round E15 Gasoline

EPA’s long-promised rules for reducing CO2 emissions from fossil fuel-fired power plants have now been published. In the proposal, EPA lays out “performance standards” for new natural gas-fired power plants and “emission guidelines” for states to use in developing standards for existing gas- and coal-fired power plants.…

Continue Reading EPA’s New Carbon Standards for Power Plants Require Quick Decisions

On January 9, the White House Council on Environmental Quality (CEQ) issued an Interim Guidance on Consideration of Greenhouse Gas (GHG) Emissions and Climate Change (Interim Guidance) “to assist Federal agencies in their consideration of the effects of GHG emissions and climate change when evaluating proposed major Federal actions in accordance with the National Environmental Policy Act (NEPA).”…

Continue Reading CEQ issues Notice of Interim Guidance on Greenhouse Gas Emissions in NEPA Reviews

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.…

Continue Reading Clean Air Act Amendments Minimally Impact EPA’s Authority to Pass Climate Change Regulation

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

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