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.
EPA issued what the Agency is calling “Round 1” of final area designations under the 2015 ozone standard on November 6, 2017. The designations, which will be published in the Federal Register tomorrow, November 16, and become effective 60 days later, include only those counties, tribal areas, and territories that EPA has designated “attainment/unclassifiable” — totaling 2,646 counties. EPA also designated 3 counties in the state of Washington as “unclassifiable.” EPA did not designate any nonattainment areas as part of the final rule, but simply noted that it is “not yet prepared to issue designations” for the remaining areas of the U.S.
EPA is currently facing litigation over its June 2017 announcement extending the deadline for designating areas under the 2015 ozone NAAQS by one year, to October 2018, even though the Agency later reversed that decision. On July 12, 2017, a dozen environmental and public health groups sued EPA in the D.C. Circuit Court of Appeals, claiming the Agency did not have authority to extend the deadline for designating areas under the Clean Air Act. Fifteen states followed in their footsteps, filing their own lawsuit challenging the delay on August 1. EPA responded the following day by publicly announcing its intent to withdraw the deadline extension and published official notification of the withdrawal in the Federal Register on August 10. (82 Fed. Reg. 37,218.) Continue Reading EPA Issues Attainment Designations Under the 2015 Ozone Standard But Holds Nonattainment Designations
On November 2, EPA announced that it plans to hold the public hearing on the proposed repeal of the Clean Power Plan in Charleston, West Virginia and the Agency is extending the deadline for written comments on the rule until January 16, 2018. The hearing will be held on November 28 and 29 from 9 am – 5 pm at the West Virginia Capitol Complex in Charleston. A copy of the press release is available here.
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.
EPA’s proposed rulemaking to repeal the Clean Power Plan, signed by EPA Administrator Scott Pruitt on October 10, 2017, was published in today’s Federal Register (82 Fed.Reg. 48,035, Oct. 16, 2017). Comments will be accepted on the proposed rule through December 15, 2017. See our analysis of the proposal here.
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.
On August 22, 2017, EPA released its proposed area designations in the latest round of designations under the 2010 SO2 National Ambient Air Quality Standard (NAAQS). The proposed designations largely track the states’ recommendations; however, EPA has identified a number of areas, recommended by states as “attainment,” that EPA believes “may be violating” the standard, including areas in Florida, Guam, Indiana, Louisiana, Minnesota, Ohio, Puerto Rico, and Wisconsin. In addition, EPA has proposed to designate some areas as unclassifiable as opposed to unclassifiable/attainment. EPA has published a table that compares its intended designations with the state recommended designations. https://www.epa.gov/sulfur-dioxide-designations/intended-sulfur-dioxide-area-designations-august-2017
On July 25, California Governor Jerry Brown signed into law Assembly Bill 398, an extension of California’s greenhouse gas (GHG) cap-and-trade program through 2030. Eight days after being introduced, AB 398 passed the California Legislature with a two-thirds majority vote of 55-22 in the Assembly and 28-12 in the Senate. AB 398 implements California’s goal of reducing GHG emissions to 40 percent below 1990 levels by 2030, which was codified in SB 32, a bill signed by Governor Brown last year.
California’s Supreme Court recently upheld the State’s greenhouse gas (GHG) cap-and-trade auction program. In a June 28, 2017 order, the Court denied petitions to review a lower court’s ruling that affirmed the program’s legality. Filed by a coalition of industry groups, including the California Chamber, the petitions had alleged that the cap-and-trade program constitutes an illegal tax under Proposition 13 because the law authorizing it, AB 32, was not passed by a two-thirds vote.
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.