With the Texas Legislature having now convened for the 2019 session, various key environmental issues are anticipated to be the subject of debate and legislative action. Based on bills filed to date, interim charges and recommendations made by the Texas Commission on Environmental Quality (TCEQ), environmental initiatives to be considered are expected to address, among others, the following subjects:

  • Hurricane Harvey and related issues. Issues involving Hurricane Harvey, the Category 4 hurricane which dealt a devastating blow to the Texas coast in 2017, its financial impacts, response and recovery efforts and preparation for future events have been the subject of extended scrutiny by lawmakers and government officials. Last session, a number of wide-ranging interim charges were made to various Senate and House committees to study Harvey-related issues. These interim charges included the following:
    • Evaluation of water infrastructure projects that would help with flood mitigation;
    • Examination of communication mechanisms for flood warnings and inclement weather forecasting systems;
    • Review of best practices for ensuring environmental safety during maintenance, startup and shutdown activities due to emergencies;
    • Identification of options to expedite debris removal including eliminating unnecessary regulation and streamlining the process;
    • Evaluation of the interaction between federal, state and local agencies in charge of responding to natural disasters; and
    • Study of the response of public entities that own or operate dams to large-scale rain events.

Among the bills filed to date addressing flooding and disaster issues are House Bill (HB) 26 authored by Representative Will Metcalf relating to the creation of an alert system to notify affected persons of certain releases from certain dams, HB 34 by Representative Richard Peña Raymond relating to a statewide disaster alert system, HB 274 by Representative Sarah Davis relating to the creation of the disaster reinvestment and infrastructure planning revolving fund and Senate Bill (SB) 179 by Senator Borris L. Miles relating to the establishment of a task force to conduct a comprehensive study on flood control infrastructure for Harris County. In addition, Senator Charles Perry, the Chair of the Senate Committee on Agriculture, Water and Rural Affairs, has indicated that he will introduce legislation detailing the creation of a State Flood Plan, along with a funding component, to include measures to prevent and mitigate flooding and minimize the impact of a flood event.

  • The Texas Emissions Reduction Program (TERP), which was created in 2001 to provide voluntary monetary incentives to reduce harmful pollutants from mobile sources and help bring Texas into compliance with federal air quality standards, was the subject of House and Senate interim charges from the last legislative session. As background, the TERP program had been previously set to expire on August 31, 2019, but legislation enacted last session extended the program to the end of the biennium in which Texas attains the national ambient air quality standards for ground-level ozone. While authorization for the TERP program was extended, the TERP funding mechanisms were not. In addition, the fees collected to fund TERP, which include certificate of title fees, vehicle registration and inspection fees, and motor vehicle taxes, have significantly exceeded the amounts currently allocated to the TERP program, and the surplus has been used to certify the state’s budget. In its November 28, 2018, report in response to interim charges, the Senate Finance Committee recommended the following: (i) consideration of ways to maximize TERP appropriations to ensure compliance with the Federal Clean Air Act and to ensure that funding achieves its intended purpose; (ii) regular review by the Texas Legislature, in collaboration with the TCEQ, of individual TERP grant programs, their value and economic benefit to the state; and (iii) review of the current TERP fee structure.
  • Expedited and streamlined environmental permitting. The Senate Committee on Natural Resources and Economic Development has reported that the possible allocation of additional resources and/or provision of additional flexibility in administering the TCEQ’s expedited air permitting program may merit further review by the Texas legislature. In addition, the TCEQ’s legislative recommendations include three proposals aimed at streamlining and expediting the processing of permits. First, with regard to the expedited processing of air applications, the TCEQ has proposed certain changes to improve permit processing timeframes. Specifically, the TCEQ has recommended that the current statute be modified to make clear that the surcharge revenue associated with expedited air applications may be used for agency employees that process only expedited air applications during the work week and to provide for double overtime pay for time worked by employees over their regularly scheduled work hours. Second, with regard to uncontested water district matters, the TCEQ has proposed changes to allow the TCEQ’s Executive Director to approve uncontested water district dissolutions and district conversions without the necessity of a hearing before the TCEQ Commissioners. Third, with regard to certain water right permit amendment applications that have no impact on the environment or senior water rights, TCEQ has recommended exempting such applications from requirements regarding technical review, notice and hearing.
  • The solid waste permitting and compliance process. In its December 2018 Interim Report to the 86th Legislature, the Senate Committee on Natural Resources and Economic Development, which had been charged with studying the permitting and compliance processes for waste disposal and a review of the allocation of municipal solid waste fees, identified a number of issues that may merit additional oversight during this legislative session. These include modifying the current notice of deficiency process to separate out non-substantive application deficiencies, adjusting the statutory fund allocation of the municipal solid waste disposal fee and possible procedural improvements in the permitting process for municipal solid waste facilities located in a floodplain.
  • Groundwater and surface water issues. Issues related to the regulatory framework of groundwater conservation districts and river authorities were also the subject of interim charges. The Senate Committee on Agriculture, Water and Rural Affairs found that having a groundwater conservation district process that is similar across neighboring districts would be beneficial.

To date, more than a 1000 bills and resolutions have been filed for consideration by the Texas legislature. Thousands more will likely follow. While school finance and property taxes are expected to figure prominently in the issues to be tackled by the Texas legislature, it is plain that a number of environmental measures will merit monitoring as the legislative session unfolds over the next several months.

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 The New NAAQS Review Process Begins to Take Shape

EPA has finalized a regulation you can live with, but someone dissatisfied with that result has sued the Agency.  Should you intervene to defend EPA’s action?  Is it worth it?  Does the court really pay attention to the arguments of an intervenor?  A recent decision by the D.C. Circuit in Masias v. EPA, No. 16-1314 (D.C. Cir. Oct. 19, 2018), illustrates the value of participation as a Respondent-Intervenor in these circumstances. Continue Reading Why Should I Intervene?

In my April 2, 2018, post, I asked whether the US Court of Appeals for the Fifth Circuit would put another nail in the coffin of NSR enforcement for projects completed a long time (some of them, decades) before EPA or other plaintiffs filed a complaint alleging NSR violations. A three-judge panel of the Court of Appeals answered in United States v. Luminant, No. 17-10235 (5th Cir. Oct. 1, 2018), by unanimously ruling that the statute of limitations bars civil penalties for NSR violations that allegedly occurred more than five years before the filing of the complaint. But in a 2-1 decision, the majority ruled that, while injunctive relief is also barred in those circumstances for non-government plaintiffs (Sierra Club, in this case), injunctive relief is still “available” when the government is seeking to enforce the Clean Air Act. In her dissent in part, Judge Elrod said she would have affirmed the district court’s dismissal of the case in all respects, characterizing any “injunctive” relief sought by the government as “really just time-barred penalties in disguise.” Continue Reading Yes, Said the Fifth Circuit: We Have Put Another Nail in the Coffin of NSR Enforcement for Ancient Projects; But It Is Not The Final Nail

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 California’s AB 617: Inadequate Time?

The phrase “interstate transport” conjures images of planes, trains and trucks carrying people and goods cross-country. But, under the federal Clean Air Act (CAA), the term is often used to refer to interstate air pollution—emissions from factories, power plants, motor vehicles, refineries and other sources that are transported by prevailing winds across state lines, sometimes over hundreds of miles. The interstate transport phenomenon often has posed for the US Environmental Protection Agency (EPA) what the Supreme Court has called “a thorny causation problem: How should EPA allocate among multiple contributing upwind States responsibility for a downwind State’s excess pollution?” EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1604 (2014). EPA’s efforts to address this issue have yielded, over the last two decades, a series of complex federal regulatory programs imposing increasingly stringent controls on emissions in most states in the eastern half of the country—first the “NOx SIP Call” rule in 1998, then the Clean Air Interstate Rule in 2005, followed by the Cross-State Air Pollution Rule (CSAPR) in 2011 and, most recently, the 2016 “CSAPR Update” rule. Now, however, EPA, while vigorously defending the CSAPR Update rule against pending litigation challenges, is signaling a fresh approach for potential future interstate transport regulation, an approach that may involve greater deference to states’ analyses and determinations and that may eschew additional broad regulatory mandates imposed by EPA. Continue Reading EPA Makes Room for State Flexibility in Addressing “Interstate Transport” Under the Clean Air Act

The New Source Review (NSR) program of the Clean Air Act requires major stationary sources to go through an extensive, time-consuming, and expensive review and permitting process prior to construction. Among other requirements, such sources are required 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 ways that result in significantly increased emissions.

The pace of enforcement actions has decreased in recent years, but more than a decade-and-a-half of NSR enforcement litigation has failed to settle the main legal issues, resulting in contradictory court decisions. This lack of certainty has significant implications to how sources must evaluate compliance going forward.

To learn more, read this article originally published in Natural Gas & Electricity’s September 2018 issue. Felicia Barnes, now an associate at Beveridge & Diamond, was a contributing author.

As a former regulator (both as an inspector and an attorney, ensuring compliance and enforcing violations) in the environmental law enforcement space, I read EPA Assistant Administrator Susan Parker Bodine’s recent memorandum entitled Transition from National Enforcement Initiatives to National Compliance Initiatives with great interest. Having numerous facility inspections and enforcement settlements under my belt, I have seen firsthand the interplay between compliance and enforcement. To be sure, the threat of enforcement and the deterrence factor associated with resolving an enforcement action are powerful tools. But, if the end goal is compliance with environmental laws, does the road leading there have to be so scary for the regulated community? Whereas many regulated parties commonly see EPA and other environmental agencies as enforcement machines, this proposed transition to a more compliance-oriented approach may be not only a welcome change, but also an appropriate one that will actually improve compliance. After all, Ms. Bodine’s office is entitled the Office of Enforcement and Compliance Assurance (OECA). Isn’t it a good idea to have an equal focus on helping with compliance and on enforcement? And isn’t the point to maximize compliance? Shouldn’t OECA be striving for a world in which its “enforcement” arm goes out of business because it has “assured compliance?” That may be too much for the regulated community to hope for, but the notion of “compliance” initiatives over “enforcement” initiatives is not a bad way to start. Continue Reading EPA Announces Shift from National Enforcement Initiatives to National Compliance Initiatives

Our regulatory state is founded on the principle that regulated parties must have notice of their compliance obligations. Laws or regulations that fail to give fair notice violate due process and cannot give rise to liability. See, e.g., Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995).

A notoriously unclear regulatory program addresses circumstances under which an existing facility triggers the Clean Air Act’s (CAA) “new source review” (NSR) program and its associated control technology and air quality review requirements. Over the past two decades, courts have concluded that the same words in the regulations have diametrically opposed meanings. Compare Nat’l Parks Conservation Ass’n, Inc. v. TVA, No. 3:01-CV-71, 2010 WL 1291335 (E.D. Tenn.Mar. 31, 2010) (boiler tube replacement is “routine” repair and replacement) with United States v. Ohio Edison Co., 276 F. Supp. 2d 829 (S.D. Ohio 2003) (boiler tube replacement is not “routine” repair and replacement). Indeed, after addressing the application of NSR to an industrial facility on two occasions, one three-judge panel in the Sixth Circuit produced five different opinions advancing three different interpretations of key provisions of the rules. See United States v. DTE Energy Co., 711 F.3d 643 (6th Cir. 2013); United States v. DTE Energy Co., 845 F.3d 735 (6th Cir. 2017). Disagreement among judges over the meaning of a regulation is objective evidence of a rule’s failure to provide fair notice of its compliance obligations. Continue Reading NSR Reform — EPA’s ACE Proposal

In an article published in Law360, two Hunton Andrews Kurth LLP Partners discuss the passage of the Bipartisan Budget Act of 2018 and its implications for Section 45Q of the Internal Revenue Code. Carbon capture and sequestration supporters expect this to significantly boost deployment of carbon capture and storage (CCS) across the US.

Readers can access the full article here.