The US Environmental Protection Agency has continued to pursue an enforcement agenda against many of the same businesses believed to benefit the most from the Administration’s policies. Notably, this includes midstream oil and gas sources, as recently evidenced by EPA’s September 2019 Enforcement Alert titled, “EPA Observed Air Emissions from Natural Gas Gathering Operations in Violation of the Clean Air Act.”
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Policy makers in California have pledged to resist Trump administration policy changes on environmental and other issues. Senate Bill 1 (SB 1), proposing the California Environmental, Public Health and Workers Defense Act of 2019, is the California legislature’s current preemptive response to the administration’s attempts to modify certain federal environmental and worker safety laws.

SB 1 has passed the California Senate. It is awaiting a final hearing in the State Assembly’s Appropriations Committee, likely sometime in mid‑to‑late August. After that, it moves to the Assembly floor, where a final vote is required by the end of California’s legislative session on September 13, 2019.
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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.
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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.
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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.
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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.
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When most Americans think about the traditions of presidential transitions, they recall the oath of office, the prior president and family leaving the White House, the inaugural parade, the balls with their beautiful gowns and sharp tuxedos, and more. What they more than likely don’t think about, much less even know about, are other happenings in the White House and in the agencies that run our government. While the peaceful transfer of power is a hallmark of the American political system, it is not without controversy, particularly where the outgoing president is a member of a different political party with remarkably different political views than the incoming commander in chief.
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New lawsuits filed in the US Courts of Appeal are seeking to upend a fundamental tenet of the Clean Air Act (CAA or the Act) Title V operating permit program—i.e., that the program does not itself impose new substantive requirements but rather has the purpose of identifying, in a single document, the CAA requirements that apply to a source. These lawsuits have been filed in the D.C. Circuit, the Fifth Circuit, and the Tenth Circuit challenging EPA orders issued in response to various third-party professional environmental advocacy groups’ requests that EPA object to Title V permits proposed for several industrial facilities in Utah and Texas. In the orders, EPA clarified that the Title V permitting and petition process set forth in 42 U.S.C. § 7661d(b)(2) is not the appropriate forum to second-guess preconstruction authorizations issued under Title I of the Act and incorporated into a facility’s Title V permit. 
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On May 9, the White House released its Spring 2018 update to EPA’s regulatory agenda. Agency watchers quickly dove into the document to check the status and timelines for high-profile rulemakings and gain insights on the Trump administration’s priorities. But aside from any revelations about the administration’s own initiatives, this latest document was also notable for showing just how much EPA’s regulatory agenda can be driven by forces outside of the executive branch. A substantial portion of the actions on EPA’s regulatory agenda are included because they are mandated by law and are subject to legally binding deadlines.
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