Earlier this week, EPA published its proposed new methane regulations for the oil and gas sector. These new rules will have significant practical implications for the industry and have the potential to set new precedent for EPA’s authority under the Clean Air Act to address climate change for other industries as well. While the proposal is over 150 pages long, it does not include the actual text of the proposed rules, promising instead to provide proposed text in a supplemental notice early next year.
Continue Reading EPA Issues Highly Anticipated Methane Rule for the Oil and Gas Sector

The U.S. Supreme Court has elected to hear a legal dispute over the scope of the authority granted to the Environmental Protection Agency (EPA) under the Clean Air Act to regulate greenhouse gas (GHG) emissions from existing power plants. In orders issued October 29, the Court granted certiorari to four petitioners — West Virginia, North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings LLC — seeking reversal of a September 2020 D.C. Circuit Court of Appeals decision striking down the Affordable Clean Energy (ACE) rule.

Continue Reading Supreme Court Will Hear Controversy Over EPA Regulation of Greenhouse Gases from Existing Power Plants

In an August 3 opinion in the case of Vecinos para el Bienestar de la Comunidad Costera et al. v. FERC, Case No. 20-1093, the U.S. Court of Appeals for the District of Columbia Circuit determined that the Federal Energy Regulatory Commission (FERC or Commission) failed to adequately review the impacts of two proposed liquefied natural gas (LNG) export facilities on greenhouse gas emissions and environmental justice communities. The court remanded the proceedings to FERC for further consideration and explanation of these issues. Though the decision focused on FERC’s authorization of natural gas facilities, it signaled that the court will carefully scrutinize an agency’s obligations under the National Environmental Policy Act (NEPA), a statute that has far-reaching applicability in the hydropower context.

Continue Reading DC Circuit Directs FERC to Consider Environmental Impacts of LNG Facilities

The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions.
Continue Reading Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?

Addressing environmental justice (EJ) has been an immediate priority for the Biden administration. Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency. The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities.

Continue Reading FERC Increases Focus on Environmental Justice

On April 5, the U.S. Court of Appeals for the D.C. Circuit vacated a Trump-era rule that would have prevented the Environmental Protection Agency (EPA) from setting greenhouse gas (GHG) emissions standards for almost any class of stationary sources, except for fossil fuel-fired electric generating units. The court’s decision, issued at the request of the new Biden EPA, clears the way for new sector-by-sector GHG regulations should the new administration seek to set new GHG standards under Section 111 of the Clean Air Act (CAA).

Continue Reading Rule Limiting EPA Regulation of GHG Emissions Vacated by D.C. Circuit

On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard to FERC’s issuance of a gas pipeline certificate when NYSDEC sought to extend its review period beyond the one-year deadline under Section 401 of the Clean Water Act (CWA or Act) by agreeing with the applicant to “post-date” the filing date of its water quality certification application by several weeks.

Continue Reading Second Circuit Enforces the Clean Water Act Section 401 One-Year Time Limit

Just before the inauguration of President Biden, the Trump administration surprised many by failing to revise the stringent CO2 standard for new coal-fired power plants. That standard, adopted by the Obama administration, is based on the use of carbon capture and sequestration — a technology only installed once in the U.S. at a facility that has now been mothballed. When the Trump administration proposed to repeal and replace that standard in 2018, the chance of it surviving in its current form seemed slim. However, as the clock ran out, the Trump EPA failed to finalize its 2018 proposal and instead issued a “significant contribution finding” that attempts to limit regulation of greenhouse gases from new sources to electric utilities alone. While likely to be reversed quickly by the Biden EPA, that determination erects one more barrier to broad regulation of greenhouse gas emissions under the Clean Air Act (Act).

Continue Reading Trump EPA’s Last-Minute Surprise on Climate Standards for New Coal-Fired Utilities Intended to Block Similar Standards for Other Sectors

On October 29, EPA published a proposed revision to its Cross State Air Pollution Rule (CSAPR) Update in response to the remand of the rule by the D.C. Circuit. The CSAPR Update was promulgated under the Clean Air Act’s “Good Neighbor” provision, which requires states to ensure that pollution from sources within their borders does not significantly contribute to the ability of downwind states to attain or maintain the National Ambient Air Quality Standards (NAAQS). Under the Good Neighbor provision, if a State Implementation Plan (SIP) does not adequately address the interstate transport of pollutants, EPA must step in and issue its own rules through a Federal Implementation Plan (FIP). EPA issued the CSAPR Update in 2016, imposing FIPs on 22 states requiring ozone season NOx reductions from electric generating units (EGUs) to address the 2008 ozone NAAQS. In the 2018 CSAPR Closeout, EPA determined that no further emission reductions were required for all but two of the states covered by the CSAPR Update.

Continue Reading EPA Proposes Revised Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

The EPA has issued a rule requiring all significant agency guidance to undergo a public notice and comment process prior to issuance, modification or withdrawal (Rule). The new Rule was adopted pursuant to Executive Order 13891, which also required the agency to distinguish active guidance from inactive guidance, and to limit documents available through the official EPA guidance portal (Order). As of June 27, 2020 only guidance available through the official agency guidance portals qualifies as active guidance.

Continue Reading EPA Adopts Measures to Improve the Transparency of Significant Agency Guidance