In response to judicial remand of its Cross-State Air Pollution Rule (CSAPR) Update, EPA published a revised CSAPR Update – the latest of EPA’s interstate transport rules using its CSAPR methodology – at the end of April 2021, slashing ozone-season budgets for emissions of nitrogen oxides (NOx) for a dozen states. By the end of the 60-day period for filing petitions for judicial review on June 29, a single petition for judicial review had been filed in the US Court of Appeals for the DC Circuit.
Continue Reading EPA’s Revised CSAPR Updated is Issued and a Single Petition for Review is Filed in the DC Circuit

On Wednesday, June 16, 2021, EPA held the first of two public “listening sessions” to inform its review of the Risk Management Program (RMP) regulations pursuant to Executive Order 13990.  According to Carlton Waterhouse, EPA Deputy Assistant Administrator for the Office of Land & Emergency Management (OLEM), the listening sessions are “a first step in considering improvements to the RMP rule, so EPA can better address the impacts of climate change on facility safety and protect communities from chemical accidents, especially vulnerable and overburdened communities living near RMP facilities.”

Continue Reading EPA “Listening Session” on RMP Rule Foreshadows Regulatory Changes

On October 8, 2020, Wyoming federal district court Judge Skavdahl struck down the Bureau of Land Management’s (BLM) “Waste Prevention Rule,” otherwise known as the “Venting and Flaring Rule,” which had been promulgated on November 18, 2016, in the closing months of President Obama’s second term (“2016 Rule”).  See Order on Pets. for Review of Final Agency Action, Wyoming v. U.S. Dep’t of Interior, No. 2:16-CV-0285-SWS (D. Wyo. Oct. 8, 2020) (Order vacating 2016 Rule).  The detailed fifty-seven-page decision concludes that in issuing the 2016 Rule, BLM exceeded its statutory authority and acted arbitrarily.  The core of the court’s holding was that the 2016 Rule was grounded in air quality motivations, which was the purview of the Environmental Protection Agency (EPA) and, therefore, beyond BLM’s statutory authority to promulgate.

Continue Reading Stay in your lane! Wyoming Federal Court Finds BLM Venting and Flaring Rule Intrudes on EPA Authority

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

Company Boards of Directors and senior executives of oil and gas companies should take notice of a May 14, 2020, guidance document issued by the Chemical Safety Board (CSB) entitled, “CSB Best Practice Guidance for Corporate Boards of Directors and Executives in the Offshore Oil and Gas Industry for Major Accident Prevention.,”  And don’t be deceived by its title reference to offshore activities.  Companies also need to pay mind to the guidance for onshore operations.  Why?  If there is an accident, government agencies will likely argue that the principles articulated apply equally as well on dry land. 
Continue Reading Chemical Safety Board’s New “Best Practice Guidance for Corporate Boards of Directors and Executives in the Offshore Oil and Gas Industry for Major Accident Prevention” – Onshore Operators Take Notice!

On June 30, 2020, Democratic members of the House Select Committee on the Climate Crisis unveiled a 538-page report that calls for reaching net-zero greenhouse gas (GHG) emissions economy-wide by 2050. The report, titled “Solving the Climate Crisis: The Congressional Action Plan for a Clean Energy Economy and a Healthy and Just America,” includes over a hundred policy recommendations to meet the 2050 goal.
Continue Reading House Democrats Release Climate Action Plan

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

How can sitting still in the Northeast potentially land you in a world of trouble under the Federal Clean Air Act (CAA) and corresponding state laws? Quite easily, if you happen to be in or leave a vehicle with its engine on and the vehicle itself is not in motion for more than a few minutes. That is the definition of “unnecessary vehicle idling” in many jurisdictions.

Across the Northeast and elsewhere, unnecessary vehicle idling is, subject to certain nuances and exceptions, generally prohibited. Recently, violators have come under attack by non-governmental organizations. State penalties vary, but the potential exposure can be severe, especially when the statutory maximum available penalties are calculated pursuant to the Federal CAA and compounded on a per-violation/per-day basis. Accordingly, owners and operators of all forms of trucking and transit companies should not sit still and should take proactive measures to educate or reeducate vehicle schedulers and operators alike on these anti-idling requirements.
Continue Reading Sitting Still (or How State Anti-Idling Laws are Landing Transit and Transportation Companies in Federal Court)

Over the last decade, phase one of the Clean Air Act’s regional haze program cost companies (primarily electric generating companies) hundreds of millions of dollars in compliance costs and caused the early closure of a number of facilities. The program is just now entering the initial stages of its second planning period, with major implementation activities expected over the next few years. Unsuspecting companies are finding themselves the targets of the program’s requirements for the first time. In states that have taken early action—Arizona, New Mexico, North Dakota, Oregon and Washington—there has been a shift in attention from older power plants to oil and gas operations and manufacturing facilities in the pulp and paper, cement, and minerals sectors, among others. Even companies that have been through this regulatory process before are facing difficult new questions due to major rule changes enacted in 2017, changes to guidance and key technical documents, and a new focus on statutory provisions addressing “reasonable progress” that were not often used in the past. Hunton Andrews Kurth LLP partner Aaron Flynn has assisted numerous clients in dealing with regional haze issues. In this video, partner Allison Wood interviews Aaron regarding the recent developments in the regional haze program and regarding how companies can best position themselves as states and EPA decide on the next round of emission control requirements.

Continue Reading VIDEO Inside Look: Regional Haze

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.”
Continue Reading Don’t Be a Pig: EPA Focuses Enforcement Alert Against Mid-Stream Gas Gathering Operations