On July 28, 2015, the US Court of Appeals for the D.C. Circuit remanded part of the Cross-State Air Pollution Rule (CSAPR) to USEPA for reconsideration, finding that the Agency had erred in 2014 sulfur dioxide and ozone budgets for 13 states. The next opportunity to influence outcome will be US EPA’s rulemaking process for re-setting … Continue Reading
On April 8, 2015, a coalition of nine environmental organizations from California, Louisiana, Oregon and Ohio filed a Clean Air Act (CAA) citizen suit against US EPA in the District of Columbia alleging US EPA failed to “review, and revise as necessary” air toxics standards for 21 source categories under CAA § 112(d)(6). The environmental organizations also allege US … Continue Reading
As we reported last summer, the US Supreme Court ruled that US EPA lacked authority to impose Prevention of Significant Deterioration (PSD) and Title V permitting requirements under the Clean Air Act (CAA) on facilities based solely on their emission of greenhouse gases (GHGs). Since that decision there have been many questions about how sources of GHG … Continue Reading
On April 20, 2015, EPA revised AP-42 emission factors for equipment found in refineries, chemical plants, and miscellaneous sources, substantially increasing the estimated emissions produced by equipment from these industry categories. The emission factors, which were last updated in 1991, were revised as a result of litigation brought by environmental groups that asserted that EPA had … Continue Reading
Recently, the US Chamber of Commerce (Chamber) published its report Truth In Regulating: Restoring Transparency to EPA Rulemaking, criticizing EPA for not providing critical details about the regulatory intent and true costs associated with significant Agency rulemakings. The Chamber report follows on the heels of last week’s passage of H.R. 1029, the EPA Science Advisory Board Reform … Continue Reading
This month, in Perez v. Mortgage Bankers Association, the US Supreme Court overturned the D.C. Circuit’s Paralyzed Veteran doctrine, rejecting nearly 20 years of precedent requiring federal agencies to abide by notice-and-comment rulemaking procedures when they substantially alter an “interpretive” rule. However, the decision also hints that even broader changes may be afoot. Writing in … Continue Reading
Earlier this month, the Ninth Circuit affirmed the dismissal of environmental groups’ Clean Air Act (CAA) citizen-suit actions against US EPA. The court held that US EPA does not have a nondiscretionary duty to promulgate revised Prevention of Significant Deterioration (PSD) regulations when it revises a National Ambient Air Quality Standard (NAAQS). The Plaintiffs – … Continue Reading
On November 25, 2014, US EPA released its long-awaited proposal to tighten the 8-hr ground-level ozone standard. The impacts of this rule are difficult to overstate. Unless changed, it will push much of the country into non-attainment, forcing state regulators to pursue emissions reductions while making permitting more difficult and restricting growth. A Smoggy Past: … Continue Reading
On August 20, 2014, the US Court of Appeals for the Ninth Circuit affirmed the dismissal of a suit brought by environmental groups against Union Pacific Corp. and BNSF Railway Co., holding that the Resource Conservation and Recovery Act (RCRA) does not authorize a citizen suit to enjoin the emission of diesel particulate matter as it … Continue Reading
On August 12, 2014, the Ninth Circuit, in Sierra Club v. EPA, vacated US EPA’s decision to issue a Prevention of Significant Deterioration (PSD) permit to construct a power plant under outdated – and less stringent – air quality standards in place when the permit application was submitted. The Court held that the Clean Air … Continue Reading
As discussed in our recent blog post and client alert, the proposed Carbon Pollution Emission Guidelines for Existing Stationary Sources (ESPS) has now been published in the Federal Register. This publication commences the 120 day comment period. Comments on the proposed rule must be received by US EPA on or before October 16, 2014.… Continue Reading
On June 2, US EPA published a final rule that outlines the regulatory framework states must follow to implement the 1997 and 2006 standards for fine particulate matter, or PM2.5. The Rule was issued in response to a remand from the D.C. Circuit Court of Appeals in January 2013, which returned for correction a pair of rules … Continue Reading
As detailed in our recent Client Alert, the Obama Administration, in an effort to curb carbon dioxide (CO2) emissions, has released a proposed rule that, if finalized, will require 30% reductions of CO2 emissions from 2005 emission levels from existing power plants by the year 2030. The proposed existing source performance standard (ESPS) purports to … Continue Reading
On May 9, the Court of Appeals for the D.C. Circuit upheld US EPA’s rule revising the annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5) despite serious concerns regarding how states and regulated entities are to proceed under new rules. The January 2013 final rule lowers the annual allowable limit for PM2.5, eliminates the option of “spatial … Continue Reading
US EPA has its work cut out for it as the Agency begins to review over 10,000 comments submitted concerning its proposed 2013 Clean Air Act New Source Performance Standards (NSPS) for new power plants through the close of the comment period on May 9, 2014. US EPA’s work begins just as it plans to release its proposed … Continue Reading
On April 15, 2014, in White Stallion Energy Center v. EPA, the US Court of Appeals for the D.C. Circuit upheld the Mercury and Air Toxics Standards (MATS) promulgated by US EPA on February 16, 2012, which sets new emissions standards for new and existing coal- and oil-fired power plants. EPA estimates that 1,400 power plants will be affected by the … Continue Reading
On April 29, 2014, the U.S. Supreme Court issued a 6-2 opinion reversing the D.C. Circuit Court of Appeals and reinstating the U.S. EPA’s promulgation of the Cross-State Air Pollution Rule (“CSAPR”), which regulates the inter-state transport of NOx and SO2 emissions in implementing the “Good Neighbor Provision” in the Clean Air Act. A centerpiece … Continue Reading
On December 10, 2013, the US Supreme Court heard oral argument in consolidated appeals by US EPA and the American Lung Association regarding the Cross-State Air Pollution Rule (CSAPR) in EPA v. EME Homer City Generation L. P. CSAPR is US EPA’s second attempt at developing a rule to address the Clean Air Act’s “good neighbor” … Continue Reading
United States v. EME Homer City Generation, L.P. A circuit court has once again rejected the government’s invitation to rehear whether a PSD violation is a one-time or continuous violation. On December 12, 2013, the Third Circuit denied petitions from the United States, and the States of New York, New Jersey and the Commonwealth of Pennsylvania, … Continue Reading
Today the White House Office of Management and Budget (OMB) published notice of its request for comment on the Technical Support Document (TSD) for the Social Cost of Carbon (SCC). While OMB is seeking input on “all aspects of the TSD and its use of integrated assessment models (IAMs) to estimate SCC values to support agency regulatory … Continue Reading
In June, we wrote about the Obama Administration increasing the Social Cost of Carbon. Predictably, people were unhappy about being informed of the increase through a regulatory impact analysis that dealt with energy efficiency standards for microwave ovens. The lackluster reveal attracted so much attention that the Obama Administration recently announced that it will provide … Continue Reading
On Tuesday, October 15, 2013, the Supreme Court agreed to review whether EPA took an unreasonable leap by determining that its regulation of greenhouse gas (“GHG”) emissions from new motor vehicles (the “Tailpipe Rule”) automatically triggered a statutory requirement for EPA to regulate GHG emissions from stationary sources. (See Squire Sanders’ frESH Blog Post discussing … Continue Reading
On September 23, 2013, the Third Circuit denied GenOn Power Midwest LP’s Petition for Rehearing En Banc in the Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P. appeal. As we previously reported, the petition sought review of the court’s September 3, 2013 decision finding that the Clean Air Act does not preempt state law … Continue Reading
On Friday, in the United States v. Midwest Generation, LLC appeal, the Seventh Circuit denied the government’s petition for rehearing and rehearing en banc of the court’s July 8, 2013 decision affirming the dismissal of certain PSD / NSR claims. The judges responded to the petition uniformly. No judge in regular active service requested a … Continue Reading
