Much ado is being made of recent amendments to the Clean Air Act (CAA) contained in the Biden administration’s budget reconciliation law passed in mid-August, commonly referred to as the Inflation Reduction Act (IRA). And with good reason, as the law includes the most significant changes to the CAA since 1990, and the new sections formally define greenhouse gases (GHGs) as an “air pollutant,” consistent with the Supreme Court’s 2007 decision in Massachusetts v. EPA.

However, the IRA amendments to the CAA do not in fact make significant substantive changes in law. Legally speaking, they can’t, given that the IRA is merely a reconciliation bill through which Congress may only assign funding. More to the point, none of the IRA amendments to the CAA address in any way the limitations the Supreme Court recently placed on EPA’s authority to adopt climate change regulation in West Virginia v. EPA, notwithstanding some characterizations to the contrary.

Continue Reading Clean Air Act Amendments Minimally Impact EPA’s Authority to Pass Climate Change Regulation

EPA’s standards for hazardous air pollutant (HAP) emissions from industrial boilers have been controversial for nearly two decades. Ever since EPA first proposed “maximum achievable control technology” (MACT) standards for boilers in 2003, which were then entirely vacated by the D.C. Circuit, each new iteration of the rule has raised new legal issues and often foundered in court.

Continue Reading EPA’s Final Industrial Boiler Rule Raises Controversial Topics

On the last day of what was already an historic term, the Supreme Court issued another significant decision impacting EPA’s authority under the Clean Air Act to regulate greenhouse gas emissions and address climate change. As EPA embarks on a third attempt at a rule targeting CO2 emissions from existing power plants that will pass legal muster, the question now is how the Court’s decision will affect that new rule.

Continue Reading West Virginia v. EPA: The Supreme Court Speaks Again on Climate

On January 18, the White House Council on Environmental Quality (CEQ) urged the Fourth Circuit, U.S. Court of appeals to affirm the pre-application dismissal of environmentalists’ litigation over a Trump era rule that significantly altered how agencies utilize the National Environmental Policy Act (NEPA), including their climate analysis.
Continue Reading White House CEQ Asks Fourth Circuit for a “Do Over” on NEPA

To help reboot after the holiday break, here is a list of air topics we expect to make news in 2022 with a short discussion of why each one may be important to you.

Continue Reading Welcome Back! These Are the Air Topics That Will Make News in 2022

On October 7, the Council on Environmental Quality (CEQ) issued a Notice of Proposed Rulemaking (NOPR) to revise its regulations implementing the National Environmental Policy Act (NEPA), which requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The NOPR is focused on revisions the July 2020 rulemaking completed by the Trump administration, which was the first significant overhaul of the NEPA regulations since their initial promulgation in 1978. The Trump rulemaking included provisions to streamline the NEPA review process, as well as substantive changes to the scope of the review. CEQ’s NOPR follows an announcement early in 2021 by the incoming Biden administration that it planned to review the July 2020 rulemaking. In the NOPR, the Biden administration outlines the aspects of the rule it plans to change: the purpose and need of a proposed agency action, agency procedures for implementing CEQ’s regulations, and the definition of “effects” of a proposed action.

Continue Reading Notice of Proposed Rulemaking for NEPA Revisions Announced

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?

Now that we’re past July 4th and on the downhill side of summer, thoughts are turning to what EPA and the courts might do this fall with the many air quality and climate change issues before them. Here is a list of some of the most closely watched rulemakings on EPA’s recently released regulatory agenda and some key issues to watch for under the new Biden EPA. The ID numbers below for each agenda item contain links that will take you directly to the webpage tracking the status of the action.

Continue Reading What’s Next? EPA’s Air Agenda Highlights Priorities

On March 17, 2021, a coalition of environmental organizations and clean energy groups led by the Center for Biological Diversity (CBD) petitioned the Federal Energy Regulatory Commission (FERC) for a rulemaking that would amend the Uniform Systems of Accounts (USofA) requirements to disallow utilities from recovering the cost of membership from ratepayers in associations engaged in lobbying or other influence-related activities. CBD argues that these associations lack transparency, and many engage in “anti-climate” advocacy, including lobbying and campaigning activities, that do not align with the priorities of ratepayers.
Continue Reading Clean Energy Groups Ask FERC for Transparency Into “Anti-Climate” Groups

Following the Council on Environmental Quality’s (CEQ) July 2020 overhaul of regulations implementing the National Environmental Policy Act (NEPA), environmental plaintiffs filed a series of lawsuits challenging the rule in federal courts in California, Virginia, New York, and the District of Columbia. The plaintiffs argued that CEQ violated NEPA itself in promulgating the final rule by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS). They also argued that CEQ ran afoul of the Administrative Procedure Act (APA) by failing to follow notice-and-comment requirements, by issuing a final rule that is “arbitrary and capricious,” and by improperly narrowing both the scope of projects under review and the types of impacts agencies should consider.

Continue Reading NEPA Litigation Update