On April 2, 2018, the U.S. Fish and Wildlife Service (“USFWS”) submitted three proposed rules to the Office of Management and Budget (“OMB”), which is charged with reviewing every final and proposed federal agency rule before its publication in the Federal Register.  These proposals, if implemented, will significantly change USFWS’ implementation of the Endangered Species Act (“ESA”).

On March 16, 2018, the D.C. Circuit Court of Appeals partially upheld and partially rejected an EPA rule known as the “Boiler MACT.”  Officially named the “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters,” it regulates the emissions of certain types of air pollutants known as “hazardous air pollutants” from boilers located at “major sources” of those pollutants.  EPA issued the rule in several different rulemakings, due to the fact that the agency decided to reconsider a few provisions several times along the way.  As a result, the litigation over the rule became very complicated.  Sierra Club challenged numerous provisions of the rule, claiming that they failed to comply with the Clean Air Act.  Most of those challenges were resolved in a 2016 decision, but the court had reserved two issues that were finally decided this week—namely Sierra Club’s challenges to EPA’s carbon monoxide (CO) limits for certain boilers and the startup and shutdown work practices.  Specifically, Sierra Club alleged that (1) EPA failed to adequately justify its decision to make CO limit less stringent (130 ppm), and (2) EPA’s qualitative “work practice” standards during startup and shutdown are unlawful.

On March 20th, the DC Circuit upheld EPA’s June 2012 “CSAPR = BART Rule,” establishing that compliance with EPA’s Cross State Air Pollution Rule (CSAPR) will satisfy the Best Available Retrofit Technology (BART) requirements for SO2 and/or NOx under the Regional Haze Rules for electric generating units (EGUs) subject to CSAPR.   Under the Regional Haze Program, EPA has issued regulations that allow the Agency to approve alternatives to BART if EPA finds that the controls are “better than BART.”

EPA published a proposed rule (83 Fed. Reg. 11654) today that would ease the management standards for aerosol cans.  Stakeholders, particularly the retail sector, has pushed for this addition for some time.  Currently, once a waste, aerosol cans must often be managed as hazardous waste under the Resource Conservation and Recovery Act (RCRA), generally because of their ignitability, and thus often are subject to stringent regulations related to handling, transportation, and disposal.  Today’s proposal would add aerosol cans to the existing federal list of universal wastes.

NSR—the program imposing onerous permitting requirements on the construction of new sources and “major modification” projects at existing sources—requires industrial sources of air emissions to determine whether the projects they propose will increase those emissions.  EPA adopted regulations in 2002 to provide a new structure for those critical emission calculations, which specifies that sources must calculate the “sum of the differences” between a baseline and a future projection for each existing emission unit.  That language is particularly important for individual projects that may cause emissions to go down at one unit but up at another.

On March 1, 2018, the U.S. Environmental Protection Agency’s (“EPA”) Administrator, E. Scott Pruitt, signed a notice seeking public comment on the proposed withdrawal of the control techniques guidelines (“CTG”) for the oil and natural gas industry.  The oil and natural gas CTGs make recommendations for reducing volatile organic compound emissions from oil and natural gas equipment and processes in ozone nonattainment areas classified as Moderate or higher and states in the Ozone Transport Region by addressing reasonably available control technology review requirements in their state implementation plans.

On March 1, 2018, EPA released a final rule defining nonattainment area classifications under the 2015 ozone standard, along with attainment deadlines for each classification.  The rule finalizes the classifications and deadlines that were originally proposed by the Obama administration in a proposed rule issued on November 17, 2016. (81…

The Supreme Court has declined to review the U.S. Court of Appeals for the Second Circuit’s January 2017 decision in Catskill Mountains Chapter of Trout Unlimited, Inc. et al. v. U.S. EPA reinstating the U.S. Environmental Protection Agency’s (the “EPA”) Water Transfers Rule, meaning the Second Circuit’s decision reinstating the Rule will stand.  The Water Transfer Rule, issued by EPA in 2008, formalized EPA’s historic practice of excluding water transfers between water basins from the Clean Water Act’s (“CWA”) National Pollutant Discharge Elimination System (“NPDES”) permitting requirements after years of legal battles over EPA’s informal policies regarding interbasin transfers.

Last week, the Center for Biological Diversity, Water Keeper Alliance, and a coalition of other organizations served a Notice of Intent to Sue the U.S. EPA and Army Corps of Engineers (the “Agencies”), alleging the Agencies’ delay in implementing the Obama-era Waters of the U.S. (“WOTUS”) Rule violated the Endangered Species Act.

On Monday February 12, President Trump unveiled his long-awaited infrastructure plan.  According to President Trump, our country’s infrastructure “is in an unacceptable state of disrepair, which damages our country’s competitiveness and our citizens’ quality of life.”  While some view the plan as a step toward streamlining an environmental review process that could delay a project unnecessarily, others worry the proposal could curtail the authority federal agencies exercise over environmental reviews pursuant to the National Environmental Policy Act (NEPA).

The plan calls for $200 billion to be spent rebuilding roads, bridges, highways, railways, waterways, and other infrastructure over the next ten years.  That money will come from cuts to other programs (particularly within the Department of Transportation) and is not intended—at least as proposed—to come from new revenue streams.  According to President Trump, the proposed changes will generate approximately $1.5 trillion in new infrastructure investment.