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

Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process Rule” (Cost-Benefit Rule), a requirement governing cost-benefit analyses for Clean Air Act (CAA) rulemakings, and on May 18, the agency revoked the “EPA Guidance; Administrative Procedures for Issuance and Public Petitions Rule” (Guidance Document Rule), which required all “significant” EPA guidance to undergo a public notice and comment process prior to issuance, modification, or withdrawal.

Continue Reading Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules

On January 28, the Illinois Environmental Protection Agency (Illinois EPA) announced the issuance of health advisories for four (4) per- and polyfluoroalkyl substances (PFAS) compounds in accordance with the Illinois Part 620 groundwater regulations (35 Ill. Adm. Code Part 620). Health advisories are issued when a chemical substance that is harmful to human health, and for which no numeric groundwater standard exists, is detected and confirmed in a community water supply well (35 Ill. Adm. Code 620.605). The four (4) PFAS compounds for which Illinois health advisories were issued are PFBS, PFHxS, PFHxA, and PFOA.

Continue Reading Illinois EPA Issues Health Advisories for Four Per- and Polyfluoroalkyl Substances (PFAS)

The EPA’s “Secret Science” rule establishing new standards for consideration of certain “pivotal” scientific studies, which was slated to go into effect on January 6, 2021, has been vacated and remanded by the U.S. District Court for the District of Montana. The decision follows one from a few days prior in which the court rejected EPA’s attempt to make the rule immediately effective. Notably, both decisions rely on the same basic principle — that the rule is not merely procedural, as EPA claimed, but substantive. That determination could be important for other rules that the Trump EPA viewed as procedural in nature, but that have been challenged as having substantive effect.
Continue Reading UPDATE: Montana District Court Vacates EPA’s “Secret Science” Rule

On January 20, newly inaugurated President Joe Biden signed an executive order titled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” initiating review of nearly 50 environmental rules and regulations, including 20 air-related regulations that the new administration views as insufficient or unsupported by the data.

Continue Reading Biden EPA Hits the Ground Running with Reviews of Trump Air-Related Rules

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

Update: The District Court of Montana vacated the “Secret Science” rule on February 1, 2021. An update including analysis of that decision is available here.

The U.S. Environmental Protection Agency (EPA) issued a final rule establishing new standards for consideration of certain “pivotal” scientific studies, requiring that EPA give greater consideration to studies relying on dose-response data that has been made “available in a manner sufficient for independent validation.” Commonly known as the “Secret Science” rule, this measure was published in its final form under the title “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information.” The rule went into effect upon publication on January 6, 2021.


Continue Reading EPA Issues “Secret Science” Rule to Promote Transparency through Public Access to Dose-Response Data

The U.S. Environmental Protection Agency (EPA or Agency) issued final regulations governing cost-benefit analyses for Clean Air Act (CAA) rulemakings on December 23, 2020. The rule, titled “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” imposes certain requirements on the Benefit-Cost Analysis (BCA) that EPA must conduct for “significant” CAA regulations and requires EPA to consider that analysis when promulgating the regulations, unless otherwise prohibited by law. The rule seeks to force EPA to focus more on the direct benefits of a rule rather than justifying a rule based on the indirect benefits, as EPA has done with certain controversial rules in the past. However, the rule is unlikely to survive long or have much effect under the Biden administration.

Continue Reading EPA Promulgates Final Cost-Benefit Analysis Rule for Clean Air Act Regulations

On the evening of November 30, United States Environmental Protection Agency (EPA) announced a new interim strategy to address per- and polyfluoroalkyl substances (PFAS) in the environment through EPA-issued wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES). While some states have already begun regulating PFAS in wastewater and stormwater discharges, this policy represents a shift by EPA from focusing solely on PFAS contamination of drinking water and standard setting under the Safe Drinking Water Act, to detailing an interim NPDES permitting strategy under the Clean Water Act to address PFAS. The new interim strategy’s primary recommendation is for permit writers to consider “phased-in monitoring” of PFAS compounds.

Continue Reading EPA Issues Interim Strategy for PFAS in NPDES Permitting