On June 26, 2019, the Council on Environmental Quality (CEQ) released draft guidance instructing federal agencies on how to consider and document greenhouse gas (GHG) emissions and the effects of climate change when evaluating proposed federal actions under the National Environmental Policy Act (NEPA).
Continue Reading

Last month, Representative Ben Ray Luján (D-NM) and Senator Tina Smith (D-MN) introduced companion bills in the House and Senate that renewed the call for a national clean energy standard for retail utilities. While Congress has mulled over the idea for over a decade, states have passed their own standards that force power generators to obtain increasing amounts of their electricity from non- or low-emitting sources. More recently, states have aggressively updated these targets in attempts to decarbonize their power sectors.
Continue Reading

Standing may seem like an arcane concept, but, as lawyers, we know that this term has special legal meaning—and that it affects whether our clients or our clients’ opponents can successfully bring a lawsuit. Understanding standing is no easy task. In a decision by the DC Circuit last week, the Sierra Club was reminded just how important standing can be when challenging, or more to the point attempting to challenge, environmental laws, and the DC Circuit has not just singled out environmental groups in requiring a showing of standing.
Continue Reading

AB 617 requires the California Air Resources Board to develop new regulations for criteria pollutant and toxics emissions reporting. The new regulation, titled “Regulation for the Reporting of Criteria Air Pollutants and Toxic Air Contaminants” is not yet finalized. The current draft will require many new stationary sources, throughout California, to report emissions.
Continue Reading

State environmental regulators are beginning to develop plans designed to meet more stringent air quality standards under the Clean Air Act (CAA), including standards to protect against unhealthful levels of ground-level ozone. In doing so, many states are looking more closely at a factor that contributes to their air quality problems but that they lack any authority to address: the phenomenon of air pollution carried by prevailing winds into their jurisdictions from emission sources located not only outside their own state borders but outside the US itself. The issue of international contributions to air quality concerns has gained currency in part due to the many challenges states face in meeting the stringent nationwide air quality standards for ground-level ozone that the US Environmental Protection Agency (EPA) adopted in 2015.
Continue Reading

The US National Ambient Air Quality Standards (NAAQS) are the centerpiece of the US Clean Air Act (CAA) and establish allowable concentration levels for six “criteria air pollutants”: ozone, particulate matter, lead, carbon monoxide, nitrogen dioxide, and sulfur dioxide. The CAA requires the US Environmental Protection Agency (EPA) to review and, as appropriate, revise the NAAQS at least every five years, and EPA has, since 1970, regularly adopted increasingly stringent standards. Whether those revisions have gone far enough or too far has become a predictably contentious issue, with each review involving debates over science, the role of EPA’s Clean Air Science Advisory Committee (CASAC), the discretion of the EPA Administrator, and the format of the review process itself, among many other issues.
Continue Reading

When an adverse party challenges final rules that are favorable to particular companies, those companies and their trade associations sometimes question whether it is worth their time and effort to intervene on EPA’s side to help the Agency defend its action. A recent D.C. Circuit decision shows that sometimes an argument made by a Respondent-Intervenor can be decisive.
Continue Reading

The Fifth Circuit joined the overwhelming majority of US courts of appeals that have ruled that the statute of limitations bars civil penalties for alleged NSR violations. But in a divided opinion, the majority said injunctive relief may still be “available” to the government.
Continue Reading

The implementation of California’s ambitious Assembly Bill 617 (AB 617) is well under way, but it is still very uncertain whether it can or will achieve its intended outcome. Despite the long process to select the initial list of communities to be included in the in the first year of CARB’s Community Air Protection Program (CAPP) (CARB’s AB 617 implementation program), the hard work to ensure AB 617 is a success remains—namely the development and implementation of the emissions monitoring/reduction plans in the selected disadvantaged communities. In the end, the biggest impediment to AB 617’s successful implementation might be the law’s own requirements, specifically its accelerated implementation schedule, which may not provide California’s air quality management districts (air districts) with enough time to achieve the law’s goals.
Continue Reading