A recent amicus curiae filing in a high-profile Michigan Clean Air Act case targets an important aspect of environmental law — citizen suit provisions — and whether they run afoul of constitutional principles. In U.S. v. DTE Energy et al.,[1] a Michigan district court is considering arguments of two law professors who question whether citizen suits invade executive powers.

Continue Reading Amicus Briefing Suggests Citizen Suits Are Unconstitutional

Illinois is taking the final steps toward adopting an authorized state program for direct administration of the Prevention of Significant Deterioration (PSD) permitting program under proposed state regulations, taking responsibility for federal Clean Air Act (CAA) requirements previously administered under delegated authority from the U.S. Environmental Protection Agency (EPA).

Continue Reading Illinois Moves to Undertake Direct Implementation of Prevention of Significant Deterioration (PSD) Permitting under the Clean Air Act

Under the Clean Air Act, a facility that emits air pollutants may not be constructed unless an air permit has been issued to the facility.  For decades, EPA has interpreted the statute to prohibit almost any construction or modification activities until a permitting authority issues a final permit.  But on March 25, 2020, EPA proposed new guidance to clarify that, according regulations adopted 40 years ago, the only construction prohibited prior to issuance of an air permit is construction on the emitting unit itself.

Continue Reading EPA Shifts Policy on Construction Prior to an Air Permit

On March 31, 2020, the U.S. Environmental Protection Agency (“EPA”) and the National Highway Traffic Safety Administration (“NHTSA” and, collectively, the “Agencies”) released the pre-publication version of the final part to their joint Safer Affordable Fuel-Efficient (“SAFE”) Vehicles Rule. The new rule amends EPA’s greenhouse gas emission standards for passenger vehicles, light-duty trucks, and medium-duty passenger vehicles in model years 2021 and onward, and it simultaneously amends or creates NHTSA’s corporate average fuel economy standards for similar vehicles in model years (MY) 2021-2026. Under these harmonized regulations, each new model year will bring a 1.5% increase in stringency through MY 2026. Though a significant lessening of requirements from joint standards last set in 2012, this “steady ramp rate” is a notable change from the proposed version of the SAFE Vehicles Rule, which sought to maintain requirements as they applied in MY 2020. The new rule will take effect sixty days from its publication in the Federal Register.

Continue Reading Agencies Release Final Rule on Passenger Vehicle Fuel Economy

As the coronavirus (COVID-19) outbreak continues across the U.S., it is important for companies to proactively address the potential disruptions to their compliance programs. Environmental compliance is often a boots-on-the-ground activity; but what happens when those boots are at home, can’t travel as needed, or can’t observe operations at the plant level?  Unprecedented staffing and operational issues associated with the coronavirus pandemic have the potential to cause significant gaps in environmental compliance programs. Staying ahead of those gaps is key to weathering these compliance challenges. Below we discuss some recommended strategies to maintain compliance.

Continue Reading Environmental Compliance in the Wake of the Coronavirus

On March 9, 2020, EPA published its final “risk and technology review” for the standards it adopted in 2004 to regulate emissions of hazardous air pollutant (HAP) from natural gas-fired combustion turbines. Like most other such reviews, EPA confirmed that the risks presented by HAP emissions from the source category are acceptable with an ample margin of safety. EPA also concluded that there are no new cost-effective controls for reducing those emissions.

Continue Reading EPA Review of Gas Turbines Confirms Ample Margin of Safety, Even Without Controls

Last week, EPA fulfilled a promise to reverse the expansion of its refrigerant management program during the Obama Administration. That expansion, which was finalized in 2016 and became effective in 2019, EPA extended the regulations for ozone depleting substances (ODS) to non-ODS “substitute” refrigerants, with the intent of reducing emissions of substitutes that consist of greenhouse gases (GHGs), including some with very high global warming potentials. Last week’s final rule returns the refrigerant management program to its original focus, at least with respect to appliance leak repair requirements, although some regulatory requirements for non-ODS substitute refrigerants will remain in place.

Continue Reading EPA Finalizes Rule to Limit Refrigerant Program to Ozone Depleting Substances

On January 13 and 15, 2020, EPA and the U.S. Department of Labor (DOL), respectively, published their annual civil monetary penalty adjustments in the Federal Register. The Federal Civil Penalties Inflation Adjustment Act of 2015 requires federal agencies to make annual inflation adjustments to federal statutory civil penalty amounts. The annual inflation adjustments are based on a cost-of-living multiplier determined by changes to the Consumer Price Index. This year’s inflation multiplier is 1.01764.

Continue Reading EPA and OSHA Penalty Increases