In the last month of 2018, EPA released two proposals that it claims will have no immediate effect—revised CO2 standards for new coal-fired power plants that EPA does not expect anyone to build, and a determination that it is not “appropriate and necessary” to have a mercury rule that it nevertheless plans to keep on the books. The question many may be asking is why EPA would issue two highly controversial rules if they won’t have any practical effect? The answer may lie in the precedent they will set.
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule”) for coal- and oil-fired electric generating units (EGUs) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”). The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect. The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.
Last week, a federal district court ordered the Environmental Protection Agency (EPA) to complete its “risk and technology review” of existing hazardous air pollutant (HAP) rules for 20 industrial sectors within three years. The order comes in response to a lawsuit filed by environmentalists arguing that EPA is years overdue in completing reviews required by the Clean Air Act (CAA). Specifically, the CAA requires EPA to determine whether the HAP standards it has already adopted, though intended to be highly stringent, nevertheless still allow enough HAP emissions to present a risk to public health that may warrant additional restrictions. The industry sectors identified in the court’s order include municipal solid waste landfills, asphalt processing, and stationary combustion turbines. Whereas the challengers had sought a review schedule of one to two years, and EPA asked for a five-year schedule, the court selected a middle ground of three years for EPA to complete all of the reviews. Notably, that will require EPA to complete all of the reviews within the Trump administration.
A copy of the opinion is available here. If you have questions about this order, please contact Mack McGuffey or Andy Flavin.