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The White House has issued a Presidential Memorandum to several federal agencies regarding policies and principles for mitigating environmental impacts from land and water-disturbing activities. Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment was published in early November and incorporates a new “net benefit goal” expectation for mitigation in federal projects or projects requiring approval by these federal agencies. The President also set a backstop goal for mitigation of “no net loss for natural resources the agency manages that are important, scarce, or sensitive, or wherever doing so is consistent with agency mission and established natural resource objectives.” In addition to the “net benefit goal” the guidance focuses on landscape-scale planning, habitat mitigation banks, and advance conservation measures.

Washington, D.C. Environmental and Natural Resources Partner Peter Glaser was quoted in the Friday, October 23 ClimateWire article, “Opening day for EPA’s Clean Power Plan Rule and for litigation”. October 23 marked the EPA’s publishing of its Clean Power Plan rule in the Federal Register. The EPA’s Clean Power Plan rule is designed to reduce carbon dioxide emissions from existing power plants through a series of regulations by 32% from 2005 levels by 2030. These regulations are a key part of the Obama administration’s agenda to mandate efforts to address climate change.

On July 28, 2015, the United States Court of Appeals for the D.C. Circuit held that EPA’s Cross State Air Pollution Rule (“CSAPR”) over-regulates over a dozen states.  Although the rule was generally upheld by the U.S. Supreme Court in 2014, the Court remanded the case to the D.C. Circuit for further review in light of the Supreme Court’s decision.  In particular, the Supreme Court’s remand to the D.C. Circuit allowed petitioners the opportunity to bring as-applied challenges to CSAPR to demonstrate that the rule regulated emissions beyond the point necessary to bring all downwind states into attainment with the national ambient air quality standards (“NAAQS”).

In its last published opinion of the term, the United States Supreme Court held that EPA should not have ignored costs in deciding whether to regulate mercury and other hazardous air emissions from coal- and oil-fired power plants.  In that regulation, known as EPA’s Mercury and Air Toxics Standards (MATS), EPA had attempted to demonstrate that such regulation was “appropriate and necessary” without considering cost.  Although four justices found EPA’s actions to be reasonable based on the theory that EPA considered costs later in the process of setting specific emission limits, a five-justice majority held that EPA had acted unreasonably in ignoring costs in its threshold “appropriate and necessary” finding.

On June 12, EPA published its final SSM SIP Call recalling EPA-approved state air rules governing emissions associated with startup, shutdown and malfunction events at regulated facilities in 36 states.  The list of affected states is posted on EPA’s website here.  Some of these state rules have been approved and on the books for decades, while others were approved by EPA just within the last several years.  EPA is giving the affected states until November 22, 2016 to revise their SIPs and submit any new provisions to EPA for review and approval.

In a recent memo issued by EPA’s Office of Enforcement & Compliance Assurance (OECA), Assistant Administrator Cynthia Giles announced that four specific “enforcement tools” should be considered “in all civil enforcement cases and incorporated in civil and administrative settlements whenever appropriate.”  OECA notes that these measures can be imposed via settlement through “injunctive relief, mitigation, or Supplemental Environmental Projects.”

In the February 2015 issue of Natural Gas Electricity, Partner Mack McGuffey offers a summary of the air-quality regulations that the Environmental Protection Agency plans to finalize in 2015. Anticipating the EPA will spend most of the year reviewing comments and making appropriate changes to the numerous proposals submitted in…

EPA recently revised its Enforcement Response Policy for High Priority Violations of the Clean Air Act: Timely and Appropriate Enforcement Response to High Priority Violations (the “HPV Policy”). Although the new Policy is dated August 25, 2014, it was only recently released to the public. In addition to EPA, the HPV Policy also applies to state, local, territorial, and tribal environmental enforcement agencies and is designed to prioritize enforcement actions for alleged violations of the Clean Air Act. EPA describes the revisions as “substantial changes” and notes that the new policy “supersedes” a previous version of the HPV Policy issued in 1998. State/local agencies are directed to implement the changes beginning October 1, 2014.