As I have reported previously, the US Court of Appeals for the DC Circuit issued a significant decision in September 2019 on EPA’s implementation of the so-called “Good Neighbor Provision” of the federal Clean Air Act (CAA). That is the CAA’s principal provision addressing what is often termed “interstate transport,” the physical process in which emissions from cars, trucks, factories, power plants, and myriad other sources—and the resulting air pollution—are carried by prevailing winds across state borders. The main purpose of the Good Neighbor Provision (section 110(a)(2)(D)(i)(I) of the CAA) is to prevent “significant contribution” by “upwind” states’ emissions to violations of national ambient air quality standards (NAAQS) in “downwind” states. Although states have the principal responsibility to implement this provision, EPA periodically has invoked its CAA authority to impose requirements to curb interstate transport when it determines upwind states have not adopted adequate controls.

Continue Reading Against a Backdrop of Litigation, EPA Prepares a New Rule to Address Interstate Air Pollution

Regardless of whether Kisor changed principles of deference under Auer, lower courts appear less inclined to find ambiguity in agency regulations after the Kisor decision; and when they do, “unfair surprise” continues to be the most common factor weighing against deference to an agency’s interpretation.
Continue Reading Lower Courts Grappling with Deference Principles Following Kisor

The Environmental Protection Agency (EPA) will be 50 years old this year.  Over the past half century, EPA has issued literally tens of thousands of documents explaining its extensive regulatory programs.  These guidance documents come in a wide variety of forms.  Some may be signed by the EPA Administrator. Many more are signed by officials in program offices, in the Regions, or even by technical staff.  Some may provide broad national guidance, while others interpret rules in source-specific factual settings.  Guidance may appear in preambles to rules, in response to “frequently asked questions” (FAQS), in applicability determinations, in Environmental Appeals Board decisions, in General Counsel opinions, and in many other ways.  And of course, as Administrations change, guidance may change to reflect new policies.  Anyone who has had to manage environmental compliance is familiar with the challenges of identifying operative agency guidance.
Continue Reading Agency Guidance and EO 13891 – What’s “active” and what’s “rescinded”?

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.
Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy

Recent press reports note that air quality has improved worldwide and in the United States during the ongoing pandemic. Shortly prior to the pandemic, though, stories lamented declining American air quality. What’s really going on?  Is the news good or bad?
Continue Reading Air Quality in the United States has Improved Dramatically since Enactment of the Clean Air Act

Agency guidance will be subject to certain standards and procedures under a proposed rule published by EPA in the Federal Register on May 22, 2020.  According to EPA, the proposed rule is “intended to increase the transparency of EPA’s guidance practices and improve the process used to manage EPA guidance documents.”  EPA will accept written comments on the proposed rule until June 22, 2020.
Continue Reading A Rule on Guidance: EPA to Propose Rule Establishing Procedures and Requirements for Issuing and Managing Guidance Documents

Last week, the U.S. Environmental Protection Agency (“EPA”) issued its final report addressing the input received by various stakeholders relating to the management of wastewater from the oil and gas industry.  The report entitled Summary of Input on Oil and Gas Extraction Wastewater Management Practices Under the Clean Water Act is the culmination of a stakeholder engagement process that began in 2018 (“Final Report”).
Continue Reading EPA Issues Final Report on Oil and Gas Extraction Wastewater Management

The largest market for CO2 captured from industrial sources through carbon capture utilization and storage (CCUS) is enhanced oil recovery (EOR), using the CO2 to produce oil.  Captured CO2 can be used for cement, algae production, and other uses, but EOR has vast potential.  Moreover, it has a nearly 50-year track record in the US, where it was pioneered.  Carbon dioxide injected into oil formations becomes permanently stored as part of the process. 
Continue Reading CCUS After the Pandemic

Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws. 
Continue Reading County of Maui v. Hawai’i Wildlife Fund: Supreme Court Rejects Ninth Circuit’s Expansive Test for NPDES Permitting Under Clean Water Act, Requires Direct Discharges to Navigable Waters or Functional Equivalent of a Direct Discharge