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

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

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

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

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.
Continue Reading Coal Plant Demolition Triggers Illinois Air Quality Lawsuit

On Tuesday, March 10, the comment period closed on the Council on Environmental Quality’s (CEQ) Notice of Proposed Rulemaking (NOPR) to update its regulations implementing the National Environmental Policy Act (NEPA).

CEQ published its proposed rule on January 10, 2020 (see January 15, 2020 edition of the Environmental Law & Policy Monitor). CEQ’s proposed rule aims to update its regulations—which have not been modified since they were released in 1978—by streamlining the NEPA process and instituting changes to reduce delays and paperwork, and modifying the scope of agencies review of proposed actions.


Continue Reading Comments Filed on CEQ’s Proposed NEPA Rule

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

On July 29, EPA Administrator Andrew Wheeler signed a long-anticipated proposal to amend EPA’s 2015 Coal Combustion Residuals (CCR) rule.

EPA’s proposal includes a number of changes, including the establishment of an alternate risk-based groundwater protection standard for boron, revisions to the annual groundwater monitoring and corrective action report requirements, and revisions to the CCR website requirements. The proposal also includes changes in response to the U.S. Court of Appeals for the D.C. Circuit’s August 21, 2018 remand of certain CCR rule provisions. These amendments address the “beneficial use” definition and CCR pile requirements.
Continue Reading EPA Proposes Second Round of CCR Rule Amendments