On October 3, 2016, EPA published a proposed rule that would establish significant thresholds for greenhouse gases (“GHGs”) under the Prevention of Significant Deterioration (“PSD”) and Title V permit programs.

The proposed revisions respond to recent Supreme Court and D.C. Circuit decisions striking down the portion of EPA’s Tailoring Rule that would have required millions of sources to become subject to EPA’s PSD construction permitting program and Title V operating permit program solely on the basis of their GHG emissions.

On September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit heard oral argument over the Obama Administration’s signature plan for addressing climate change: the Clean Power Plan, which relies on “generation shifting” to reduce power sector emissions 32 percent by 2030. In a highly unusual move, the court held the argument en banc—that is, before all active judges (except recusals).  Thus, with the recusal of Supreme Court nominee Judge Garland, the case was heard before a ten judge panel of Judges Henderson, Tatel, Rogers, Griffith, Kavanaugh, Brown, Srinivasan, Pillard, Millett, and Wilkins (4 Republican-appointed and 6 Democrat-appointed, four of whom were appointed by President Obama).

The EPA published a final rule on September 14, 2016 to once again revise its maximum achievable control technology (MACT) standard for boilers. In this latest revision, EPA responded to various requests for reconsideration of its “area source” boilers rule, the rule that applies only to boilers located at relatively minor emission sources.  The most significant revision in this latest rulemaking involves changes to the definitions of “startup” and “shutdown” to mirror the similar revisions made in EPA’s other MACT rules.  That is, the area source boiler rule will now define startup in two different ways, one of which allows a 4 hour window during which only work practice standards will apply in lieu of the otherwise applicable numeric emission limits. 

Recent comments from Assistant Attorney General John C. Cruden, head of the U.S. Department of Justice’s Environmental and Natural Resources Division (“ENRD”), regarding DOJ’s increased use of criminal prosecutions to enforce environmental laws suggest the heightened role the ENRD’s Environmental Crimes Section could play in future enforcement actions regarding violations of environmental laws.

In 2015, Congress amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies like EPA to change the way that they adjust maximum civil penalty levels to account for inflation. In the past, EPA has only adjusted penalty levels for inflation once every several years, but the new law requires EPA to apply two new adjustments—an initial “catch-up” adjustment, and then annual adjustments beginning January 15, 2017. The Act mandates federal agencies, including EPA, to publish notice of the initial adjustments in the form of “interim final rules” by July 1, 2016.

On Tuesday, June 14, 2016, EPA published a proposed rule in the Federal Register that would remove from Title V regulations the affirmative defense for noncompliance with certain emission limitations due to “emergency” circumstances. EPA now deems the affirmative defense to be inconsistent with recent federal case law and the…

Today, Friday, June 3, 2016, EPA published in the Federal Register the final rule setting New Source Performance Standards (NSPS) regulating methane emissions from the oil and natural gas industry.

EPA also published a notice soliciting public comments on its proposed information collection request for existing oil and natural gas facilities. This marks the first step in developing methane standards for existing sources.

The U.S. Environmental Protection Agency (EPA) and the Federal Energy Regulatory Commission (FERC) recently teamed up to enforce air and energy laws in a case involving both civil and criminal allegations under the Clean Air Act (CAA) and Federal Power Act. This marks the first criminal prosecution under the Federal Power Act.