National Ambient Air Quality Standards for Ozone: With Litigation in Abeyance, What Now?

On April 11, 2017, the United States Court of Appeals for the District of Columbia Circuit canceled oral argument, which had been scheduled for April 19, in several consolidated cases challenging EPA’s 2015 revision of National Ambient Air Quality Standards (NAAQS) for ozone. The court took this action, and ordered that the case be held in abeyance, in response to an EPA motion asking that oral argument be continued, to give the appropriate Trump administration officials adequate time to review those standards. EPA’s motion indicated that the new administration is deciding whether to reconsider them.

What is the regulatory significance of the court’s action?

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Department of Energy Turns the Reliability Safety Valve

On April 14, 2017, the Department of Energy (DOE) quietly issued an emergency order under Federal Power Act (FPA) § 202(c) to keep open a power plant slated for shutdown under the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS). While DOE has issued FPA § 202(c) emergency orders in the past, this marks the first time that DOE has used such authority to address electric reliability concerns arising from MATS implementation. In doing so, DOE effectively inaugurated the so-called Reliability Safety Valve that was heavily discussed during MATS’ consideration nearly six years ago.

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Taking Environmental Markets to a New Frontier

The application of economic principles to environmental law decisions has come a long way. Today’s conflicts over cost-benefit analysis and the value of mitigation projects and trading markets are more a sign of the important and well-accepted role that economics has come to play in environmental decision-making than a fight over the threshold question of whether economics matters at all. The battle lines have shifted. Economic concepts must be taken into account. The turf on which we now fight concerns to what extent economics should drive environmental decisions.

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California Ramps Up Methane Regulation

In the latest of a series of moves reflecting the state’s intention to double down on its climate change agenda in the wake of President Trump’s inauguration, the California Air Resources Board (CARB) recently approved a new regulation aimed at curbing methane emissions from oil and gas operations. This measure, characterized by CARB as “the most comprehensive of its kind in the country,” comes on the heels of several actions recently announced by the United States Environmental Protection Agency (US EPA) to reassess the climate change programs of the previous administration, specifically those targeted at oil and gas sector emissions.

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New Source Review for Existing Sources: Reform Is Needed–Will the New Administration Do It?

The New Source Review (NSR) Program of the Clean Air Act requires large new plants (in the parlance of the act, “major” “stationary sources”) to go through an extensive, time-consuming and expensive review and permitting process prior to construction. Such sources are required through these permits, among other requirements, to install the best available control technologies (BACT) to reduce levels of specific regulated pollutants. The NSR program also applies to existing facilities if they are modified in substantial ways and if, as a result, emissions increase by significant amounts (these are known as “major modifications”).

For the first two decades of the NSR program, existing sources rarely triggered it. That is because EPA applied it in a way to be triggered only by unusual projects that would expand the capacity of the source. It is also because NSR is so time-consuming and expensive that sources generally avoided activities that would expand their capacities because they could trigger NSR.

That all changed drastically in the late 1990s. Continue Reading

President Trump’s Executive Order Prioritizing America’s Energy Independence Published in Federal Register

President Trump made good on one of his key campaign promises on Tuesday, signing an executive order (E.O.) titled Promoting Energy Independence and Economic Growth. The long-awaited E.O., which was published in the Federal Register today (82 Fed. Reg. 16093), targets the Obama administration’s key climate policies, including regulations affecting power plants and oil and gas production facilities. More broadly, the E.O. affirms the Trump administration’s priority of ensuring domestically produced energy and economic growth.

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PFASs: If You Haven’t Heard of Them, You Will Soon

What They Are:  PFASs (per- and polyfluoroalkyl substances) comprise a group of highly fluorinated manmade compounds that are showing up in drinking water supplies around the country. They are resistant to heat, water and oil, as well as to chemical breakdown. Because of these properties, PFASs have been used for decades as surface protection in a wide range of consumer products including carpets, clothing, cookware and food industry paper products such as pizza boxes and sandwich wrappers. PFASs are also present in foam used for fighting fires involving flammable or combustible liquids, such as oil and gasoline. Additionally, mist suppressants for metal plating operations may contain PFASs. Continue Reading

The Ninth Circuit Upholds a Haze Plan That Could Lead to New Flexibility in Future Rulemakings

Navajo Generating Station

Navajo Generating Station

In two related decisions issued on March 20, 2017, the Ninth Circuit upheld an EPA plan imposing regional haze requirements on the Navajo Generating Station (NGS).  The rulings suggest a possibility that future haze plans need not be unduly inflexible—sometimes forcing premature unit closures, as many haze plans did during the program’s first round of implementation.

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The Power of the Purse: President Trump Releases his “Skinny Budget” Request

President Trump released his budget request for fiscal year 2018 on March 16. The budget blueprint, or “skinny budget” as it is being called, holds fairly flat the federal spending for programs other than entitlements. It requests a significant increase in defense spending that is offset by cuts to nondefense discretionary spending.

The Environmental Protection Agency (EPA) faces drastic cuts, equaling nearly a third of its budget. This would bring the EPA’s total budget to levels not seen since 1990.

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After 85 Years, It’s Time to Reinvest in the Laboratories of Democracy

My daughter is on a high school team competing in “We the People: The Citizen and the Constitution” run by The Center for Civic Education to promote education about the Constitution and Bill of Rights. I have been privileged to have conversations with her about the Federalist Papers and some Supreme Court cases. She recently reminded me of the dissent in New State Ice Co. v. Liebmann, an opinion that may again become relevant to the evolution of environmental law, at least for those of us who live and function outside the Beltway.

How could a Depression-era case about the constitutionality of a certificate of public convenience and necessity be relevant to environmental law today? Well, there is a lot of discussion about ice manufacturing, which some might argue is relevant to climate change.

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