Mar 42021

Remanded Interstate Transport Rule Sent for White House Review

Samuel B. Boxerman and Samina Bharmal
,

On February 24, 2021, the U.S. Environmental Protection Agency (EPA) sent for White House Office of Management and Budget (OMB) prepublication review the agency’s final rule addressing “good neighbor” obligations under the 2008 national ambient air quality standards (NAAQS) for ozone. The rulemaking responds to the U.S. Court of Appeals for the D.C. Circuit’s 2019 ruling remanding the Cross-State Air Pollution Rule (CSAPR) in Wisconsin v. EPA. As discussed in Sidley’s prior blog post, on October 15, 2020, EPA issued its proposal. EPA is under a court-ordered deadline to promulgate its final rule by March 15, 2021. See New Jersey, et al. v. Wheeler, No. 1:20-cv-01425 (S.D.N.Y. 2020). Although OMB review typically takes 60 to 90 days, the most recent Unified Agenda indicates that the final rule will be published in March, in line with the court-ordered deadline. Under this timeline, it is possible that the revised rule goes into effect this year, potentially including the proposed rule’s new or revised federal implementation plans for 12 states and more stringent emission reduction requirements for the upcoming NOx (nitrogen oxides) ozone seasons.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Samina Bharmal

sbharmal@sidley.com

You might also like
U.S. Fifth Circuit Reverses EPA’s Denial of Fuel Program Hardship Exemption for Refineries

In Calumet Shreveport Refining LLC v. EPA, Case No. 22-60266 (5th Cir. Nov. 22, 2023), the U.S. Court of Appeals for the Fifth Circuit struck down Environmental Protection Agency (EPA) denials of six small refineries’ petitions for hardship relief under the Clean Air Act Renewable Fuel Standard (RFS) program, holding that EPA used an “impermissibly retroactive” standard to deny the refineries’ petitions in violation of the Administrative Procedure Act. This ruling could serve as a basis for other refineries to challenge EPA’s retroactive denial of their hardship petitions — and provides support for similar petitions pending before the U.S. Court of Appeals for the D.C. Circuit.

U.S. EPA Publishes New Regulations Governing State Plans for Existing Sources of Emissions

On November 9, 2023, the U.S. Environmental Protection Agency (EPA) published implementing regulations that set timelines and other requirements for state plans to limit pollution from existing sources under Clean Air Act (CAA) Section 111. The amended provisions apply to all emissions guidelines published after July 8, 2019, and will affect the scope and pace of development of updated performance standards for existing facilities.

U.S. EPA Enforcement Office Issues a Climate Enforcement and Compliance Strategy Memorandum

On September 28, 2023, the U.S. Environmental Protection Agency (EPA) Office of Enforcement and Compliance Assurance (OECA) issued a memorandum outlining a Climate Enforcement and Compliance Strategy, identifying several steps the office plans to take to address climate change (the Strategy Memo). As part of the strategy, EPA plans to expand its efforts to address climate change by increased enforcement of rules governing greenhouse gas–forming pollutants and incorporating climate-related mitigation efforts, including renewable energy projects into settlements as mitigation or supplemental environmental projects. The Strategy Memo comes only a month after EPA issued its first-ever national enforcement and compliance initiative on climate change.