In Kisor v. Wilkie, 588 U.S. __ (2019), a five Justice majority substantially narrowed, but did not wholly overturn, the embattled doctrines arising from Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). Under the Auer deference doctrine, courts must defer to reasonable agency interpretations of their own regulations. Several Justices and prominent scholars had criticized Auer deference on statutory, constitutional, and practical grounds. While Auer deference lives on after Kisor, the continuing practical relevance of the doctrine is doubtful for most cases. Further, Kisor’s limitations on Auer deference may portend a similar fate for Chevron deference, in future cases. Continue Reading Kisor v. Wilkie: The Future of Auer Deference, With Implications For Chevron
On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” Continue Reading A Clear Shift in Policy: CEQ Issues Draft Guidance for Consideration of Greenhouse Gas Emissions Under NEPA
On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program. If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.
In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval. EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined. Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level. EPA plans to issue proposals to address these topics in 2019. Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date. Continue Reading EPA Proposes Approval of Georgia’s CCR Permit Program
On June 26, 2019, EPA published a Notice of Proposed Rulemaking requesting comment on a proposed Maximum Contaminant Level (MCL) for perchlorate under the Safe Drinking Water Act (SDWA). Perchlorate is both a man-made and naturally-occurring chemical, most commonly found in industrial operations associated with the use or manufacture of rocket fuel, missiles and fireworks. Perchlorate inhibits the uptake of iodide to the thyroid and has been detected in certain public water supply systems, primarily in the western United States. In its Notice, EPA proposes an MCL of 56 µg/L, but at the same time requests public comment on whether the MCL should be set at a higher or lower standard, or whether the agency should re-evaluate its decision to regulate perchlorate based on updated data. This rule, if finalized, could affect thousands of public water systems that would be required to comply with the new standard, as well as state and tribal agencies responsible for drinking water regulatory development and enforcement. Continue Reading EPA Proposes Perchlorate MCL under the Safe Drinking Water Act
On June 13, 2019, EPA published a final rule that revises its release notification requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA). Specifically, the revision exempts from EPCRA reporting air emissions from animal waste at farms. While these air emissions are now exempt from reporting requirements, releases from animal waste to other water and land must still be reported. Continue Reading EPA Excludes Farm Animal Waste from EPCRA Air Emissions Reporting Obligations
The US EPA Office of Enforcement and Compliance Assurance (OECA) has recently published its final National Compliance Initiatives (NCIs) for FY 2020-2023, setting out its new enforcement and compliance areas of focus. Formerly known as the National Enforcement Initiatives (NEIs), the newly-renamed NCIs reflect OECA’s shift toward compliance assurance. EPA believes the name change helps better convey the goal of the NCIs, which is to reduce the average time from violation identification to correction. In doing so, the Agency seeks to use a collaborative approach, working with other federal, state, and local actors to help resolve violations and provide compliance resources. In its notice, EPA endorses the use of a “full range of compliance tools,” including informal actions, state-led guidance, and the use of federal civil or criminal enforcement where necessary. Continue Reading EPA Announces National Compliance Initiatives
On the heels of similar proposal last month by EPA Region 6 for Texas , EPA Region 4 has now proposed to withdraw the startup, shutdown, and malfunction (SSM) “SIP Call” for North Carolina. Both of these two actions represent EPA’s latest answer to a vexing question: what should an industrial source of air emissions do when unavoidable and abnormal circumstances cause emissions to exceed a limit designed only for normal operations? EPA’s SIP Call in 2015 reinforced policies intended to make those circumstances into a violation of the Clean Air Act and force states to adopt rules implementing those policies. The recently proposed withdrawals of the SIP Call confirm that EPA, at least in Regions 4 and 6, is planning to allow states more latitude in deciding how to handle SSM events.
On May 23, 2019, the Center for Biological Diversity and San Francisco Baykeeper (collectively “Center”) filed a lawsuit against the Fish and Wildlife Service (“Service”) in the United States District Court for the Northern District of California alleging the Service failed to protect eight species under the Endangered Species Act (“ESA”). The eight species at issue are the longfin smelt (San Francisco Bay-Delta population), Hermes copper butterfly, Marron bacora (a plant), Sierra Nevada red fox, red tree vole (North Coast population), gopher tortoise (eastern population), Berry Cave Salamander, and Puerto Rico harlequin butterfly. Each of the eight species is currently a “candidate” for listing. The Service previously found that each species warranted protection under the ESA, but that listing was warranted but precluded (“WBP”) due to the need to focus on other higher priority species. Continue Reading Fish and Wildlife Service Faces Challenge on Delay in Listing Species
The New York City Council recently enacted a sweeping package of bills aimed at constricting carbon emissions from buildings across the City in an effort to combat climate change. Known as the “Climate Mobilization Act,” the package sets lofty goals of reducing greenhouse gas emissions from certain buildings by 40% by 2030, and by 80% by 2050. The measure is similar to recent efforts by other cities to reduce carbon emissions. For example, numerous U.S. cities, including Boston, Indianapolis, Seattle, and Washington, DC, aim to be carbon neutral by 2050. However, while these efforts focus on the use of renewable energy sources, New York aims to curb emissions through requiring the use of green building products and materials in certain buildings. As such, impacts of the Climate Mobilization Act will be realized in a different manner than other efforts.
On Monday, May 6, 2019, the Oregon Department of Environmental Quality (Oregon DEQ) denied a water quality certification under section 401 of the Clean Water Act for the proposed Jordan Cove liquefied natural gas (LNG) export terminal and its feeder pipeline, the Pacific Connector, to be located on Oregon’s southern coast. Continue Reading Oregon DEQ Denies Jordan Cove Water Quality Certification