Supreme Court Upends EPA’s Broad Claims of Climate Regulatory Authority
On Thursday, June 30, the U.S. Supreme Court released its decision in West Virginia v. EPA, holding that the Environmental Protection Agency (EPA) exceeded its statutory authority in adopting the Obama-era Clean Power Plan (CPP). The 6–3 decision may limit EPA’s ability to address greenhouse gas (GHG) emissions comprehensively. A summary of the Court’s reasoning is set out below, followed by four “key takeaways.” (more…)
U.S. Supreme Court Denies Request to Reinstate Injunction of Social Cost of Greenhouse Gases
On May 26, 2022, the U.S. Supreme Court issued an order in Louisiana v. Biden denying a request to intervene and reinstate a district court order that had blocked the administration from using a key climate metric, known as the social cost of greenhouse gas emissions (SC-GHGs). In 2021, the Biden administration set various interim SC-GHGs, including the SC-CO2 at $51 per metric ton of carbon dioxide, which two groups of states have challenged in federal courts in Louisiana and Missouri. (more…)
EPA Proposes “Good Neighbor” Plan Addressing Regional Ozone Transport for the 2015 Ozone National Ambient Air Quality Standard
On April 6, 2022, the U.S. Environmental Protection Agency (EPA) is scheduled to publish its proposed Federal Implementation Plan Addressing Ozone Transport for the 2015 Ozone National Ambient Air Quality Standards (NAAQS), otherwise known as the latest iteration of EPA’s Cross-State Air Pollution Rule or “Good Neighbor” Plan. The proposal would subject 26 upwind states to the “good neighbor” or “interstate transport” provision of the Clean Air Act because EPA is proposing to find that nitrogen oxide (NOx) emissions, which are a precursor to ozone formation, from the upwind states significantly contribute to downwind states’ attaining and maintaining the 2015 ozone NAAQS.
EPA Poses Questions to New St. Croix Refinery Owners to Make Prevention of Significant Deterioration Permit Determination
On March 22, 2022, the U.S. Environmental Protection Agency (EPA) sent a letter to the West Indies Petroleum Limited and Port Hamilton Refining and Transportation LLLP, the new owners of the St. Croix refinery (Refinery). The letter addresses permitting requirements for the Refinery under the Clean Air Act’s Prevention of Significant Deterioration (PSD) regulations — and offers insight into the agency’s current practice for evaluating PSD requirements when a source seeks to restart a permitted facility. (more…)
Eighth Circuit Denies Rehearing Request in Wide-Ranging New Source Review Appeal
On November 30, 2021, the U.S. Court of Appeals for the Eighth Circuit denied cross-petitions for rehearing in United States v. Ameren Missouri, a case that addressed the reach of the new source review (NSR) requirements of the Clean Air Act (CAA). In denying the cross-petitions, the Eighth Circuit left in place an August 20, 2021, panel decision that, among other things, upheld the Eastern District of Missouri’s decision to impose injunctive relief for past NSR violations but reversed the District Court’s decision to require controls at a different power plant operated by Ameren as a way of offsetting past violations. As such, the court leaves in place precedent that sustains the United States’ authority to seek and obtain injunctive relief for wholly past violations — but may be cited as a limit on future government efforts to obtain relief beyond bringing a source into compliance. (more…)
EPA Grants States’ Petition for Reconsideration of Ozone National Ambient Air Quality Standards
Last week, the U.S. Environmental Protection Agency (EPA) granted petitions to reconsider air quality standards for ground-level ozone pollution set under the Trump administration in December 2020. Petitions were filed by a number of states, including New York, California, and the District of Columbia as well as various environmental groups. Currently, both primary and secondary ozone National Ambient Air Quality Standards remain at their 2015 levels of 70 parts per billion (ppb) over an eight-hour period. (more…)
VW Cert Petition Raises Clean Air Act Circuit Split
On August 27, 2021, Volkswagen AG and several affiliates (petitioners) filed a petition for a writ of certiorari to the Supreme Court of the United States seeking to overturn a decision of the Ohio Supreme Court that held the Clean Air Act (CAA) did not preempt state antitampering law. Petitioners assert that the Ohio Supreme Court’s decision was wrong because the CAA preempts state laws regulating emission controls. In support of their request to the U.S. Supreme Court, petitioners argue that there is a growing split among lower courts on the issue of CAA preemption, with the U.S. Court of Appeals for the Ninth Circuit (and now the Ohio Supreme Court) holding that the CAA does not preempt state emission control laws and the Alabama Supreme Court and intermediate appellate courts in Tennessee and Minnesota holding that it does. (more…)
Ninth Circuit Sends San Joaquin Valley Ozone Plan Back to EPA
On Thursday, the U.S. Court of Appeals for the Ninth Circuit granted a petition for review of the Environmental Protection Agency (EPA) final rule approving the State of California’s plan for meeting the ozone air quality standard in the San Joaquin Valley and remanded the plan to EPA for further consideration. EPA approved the plan in 2019, which included a single contingency measure that would be activated if the plan did not achieve reasonable further progress toward meeting the ozone standard. A local environmental group, the Association of Irritated Residents (AIR), challenged the approval and argued that the single contingency measure was arbitrary and capricious because it provided for only nominal emissions reductions. (more…)
DC Circuit Orders EPA to Reconsider 2019 Renewable Fuel Standard Effects on Endangered Species
The U.S. Court of Appeals for the District of Columbia Circuit ruled on July 16 that the Environmental Protection Agency (EPA) must reconsider its 2019 targets under the renewable fuel standard (RFS) related to its potential effects on endangered species. In Growth Energy v. EPA, No. 19-01023 (D.C. Cir.), three groups of petitioners had challenged the rule: renewable energy producers, parties regulated by the RFS requirements, and a group of environmental organizations. (more…)
Congress Rescinds Trump-Era Methane “Policy Rule”
On June 25, 2021, the U.S. House of Representatives voted to rescind a Trump-era methane rule using its Congressional Review Act (CRA) authority, which includes special procedures that allow Congress and the President to rescind certain rules promulgated during a prior administration, within defined time limits. The Senate passed the CRA resolution disapproving the rule on April 28, 2021. The measure garnered bipartisan support in both chambers. Congress presented the resolution to President Biden, who signed it on June 30, 2021.