Last week, the United States Supreme Court agreed to decide whether the Sixth Circuit Court of Appeals is the proper venue for challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” At least 30 states and multiple industry groups challenged the rule in federal courts across the country. In February 2016, the Sixth Circuit ruled that it, not the federal district courts, has jurisdiction to decide challenges to the rule. That appeals court ruling led to the consolidation of more than 100 challenges in the Sixth Circuit.
The United States Supreme Court will now decide whether the Sixth Circuit erred when it held that it had jurisdiction to review challenges to the Clean Water Rule. Note, the Supreme Court will not decide the merits or validity of the rule at this time. A decision in this case is expected by July of this year.
On Monday, the United States Supreme Court rejected an appeal from 20 states seeking to block the MATS rule from taking effect while the EPA undertakes a second determination whether regulating power plant mercury emissions is appropriate and necessary. As previously discussed on this blog, the MATS rule was promulgated pursuant to Section 112 of the Clean Air Act to limit emissions of mercury and other hazardous air pollutants from coal- and oil-fired electric utility steam generating units. To regulate hazardous air pollutants from electric utility steam generating units, Section 112 of the Act requires the EPA to evaluate hazards reasonably anticipated to occur from emissions occurring after other Clean Air Act mandates are in place, and determine whether regulating the emissions with a Section 112-based standard is appropriate and necessary. In June 2015, the Supreme Court ruled that the EPA failed to comply with the Clear Air Act when it made its “appropriate and necessary” determination without considering compliance costs. However, the Supreme Court remanded the case to the Continue reading Supreme Court Rejects Challenge to MATS Rule→
On May 12, the EPA finalized a set of regulations that will reduce methane, volatile organic compounds, and toxic air emissions in the oil and gas industry. The final rulewill target emissions from new or modified oil and gas wells. According to the Agency, the rule will prevent 11 million metric tons of carbon dioxide equivalent emissions in 2025. While the new standards will not apply to the vast numbers of existing rigs, well pads, and auxiliary equipment, the EPA indicated that it plans to regulate these sources as well by issuing an information request on the oil and gas industry regarding existing operations. The EPA states that the information received “will provide the foundation for developing regulations to reduce methane emissions from existing oil and gas sources.”
On Monday, the U.S. Court of Appeals for the Sixth Circuit concluded that it has jurisdiction to review challenges to the “Clean Water Rule.” As previously detailed on this blog, the Clean Water Rule was promulgated by the Environmental Protection Agency (EPA) and the Army Corps of Engineers to clarify and expand the reach of the Clean Water Act which is controlled by the phrase “waters of the United States.” But there has been intense opposition to the rule and it is now subject to more than 20 separate challenges filed by numerous states and interest groups. A number of these challenges were consolidated in the Sixth Circuit and in October, the Sixth Circuit stayed the rule nationwide, concluding that the challengers demonstrated a “substantial possibility of success.”
In yesterday’s decision, the Sixth Circuit panel concluded that it has jurisdiction to hear the consolidated challenges to the Clean Water Rule under Sixth Circuit precedent and 33 U.S.C. § 1369(b)(1) of the Clean Water Act. Unless the EPA or the Army Corps can obtain a hearing on this jurisdiction question before all of the Judges of the Sixth Circuit and/or it’s reviewed by the U.S. Supreme Court, and in either case, have the decision overturned, the Sixth Circuit will be the first court to decide the validity of the Clean Water Rule.
On December 15, 2015, the United States Court of Appeals for the District of Columbia Circuit issued an Order that will leave in place the United States Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards final rule while the agency works to issue final findings as ordered by the United States Supreme Court. In White Stallion Energy Center, LLC, et al. v. United States Environmental Protection Agency, et al., No. 12-1100 (Dec. 15, 2015), the D.C. Circuit directed that the proceedings be remanded to the EPA without vacatur of the MATS final rule. The D.C. Circuit also noted that EPA has represented that it is on track to issue a final finding by April 15, 2016.
The MATS rule has a very lengthy and controversial history. On February 16, 2012, the EPA issued national emission standards for hazardous air pollutants (NESHAP) for coal and oil-fired electric generating units (EGUs), known as the Mercury and Air Toxics Standards (MATS). The MATS rule finalized standards to reduce emissions of toxic air pollutants including mercury, arsenic and heavy metals. EPA proposed to regulate these emissions under Section 112 of the Clean Air Act (CAA). Industry, states and Continue reading D.C. Circuit Court Issues Order Remanding MATS Rule to EPA Without Vacatur→
Today a three-judge panel of the United States Court of Appeals for the Sixth Circuit stayed enforcement of the new Clean Water Rules (the “Rules’” governing activities involving the “Waters of the United States” pending resolution of several challenges to the Rules). Unlike the prior injunction from the North Dakota District Court, the Sixth Circuit prohibited the Army Corps of Engineers and the EPA from enforcing the Rules anywhere in the United States. The prior rules will remain in effect while enforcement of the new Rules is stayed.
It is likely that the Corps and EPA will seek a hearing before all of the judges of the Sixth Circuit and/or appeal the injunction to the U.S. Supreme Court. The opinion can be found here.
On October 1, the EPA lowered the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb), from the current level of 75 ppb set under President Bush in 2008. Ground-level ozone is a main component of smog and can produce a number of harmful effects on the respiratory system, including difficulty breathing and inflammation of the airways. In its rulemaking, the EPA estimates the public health benefits produced by lowering the standard will be $2.9 to $5.9 billion annually in 2025 and that they will include the prevention of 320,000 childhood asthma attacks a year. The EPA estimates that the lower standard will cause Industry to incur costs of $1.4 billion a year. Depending on the severity of the ozone problem, nonattainment areas will have from Continue reading EPA Reduces Ground-Level Ozone Standard to 70 ppb→
On Tuesday, the Environmental Protection Agency (“EPA”) proposed regulations to reduce emissions of greenhouse gases and volatile organic compounds from the oil and natural gas industry. The regulations are part of the Obama Administration’s plan to cut methane emissions from the oil and gas sector by 40 to 45 percent over the next ten years from 2012 levels. Methane is the main component of natural gas and, according to the Agency, a potent greenhouse gas with a global warming potential more than 25 times greater than that of carbon dioxide. The regulations will reduce methane emissions by 20 to 30 percent from 2012 levels by 2025. The source of the remaining reduction needed to reach the overall goal of 40 to 45 percent is unclear.
The regulations will apply to new and modified natural gas and oil wells only, not existing wells. The rules will require producers to: (1) find and repair leaks at wells, (2) capture gas from hydraulically fractured wells, (3) limit emissions from new and modified pneumatic pumps, and (4) limit emissions from compressors, pneumatic controllers, and other types of equipment used at natural gas transmission stations.
On Monday, President Obama and the EPA unveiled the final version of the Clean Power Plan, a rule that will reduce carbon dioxide emissions from fossil fuel-fired power plants. Assuming the Clean Power Plan survives an expected avalanche of legal challenges, the rule will reduce CO2 emissions from power plants by 32 percent from 2005 levels by 2030. The 32 percent target is higher than the 30 percent target in the 2014 proposed rule, and individual state goals were not adjusted equally to achieve this higher target creating clear winners and losers. For example, Kentucky’s final emission rate goal is 27% lower than what the EPA proposed for Kentucky in 2014 and Indiana’s final emission rate goal is 19% lower, while Mississippi’s final emission rate goal is 37% higher and Tennessee’s final goal is 4% higher than the proposed rule. Another big change is that states will have two more years – until 2022 instead of 2020 – to start meeting emission-reduction requirements. The final rule also places more emphasis on Continue reading EPA Finalizes the Clean Power Plan→
On May 27, the EPA finalized the “Clean Water Rule” which defines the scope of waters protected by the Clean Water Act. The rule is intended to clarify and implement Supreme Court decisions interpreting the reach of Clean Water Act provisions controlled by the phrase “waters of the United States.”
Those decisions have produced considerable confusion over what waters the EPA and the Corps of Engineers can regulate. The final rule gives the federal government an expansive jurisdiction, but is less ambiguous than the proposed rule because it relies more on distances and less on imprecise terms and descriptions. The New York Times estimates the rule will apply to about 60% of the nation’s waters.
The Clean Water Rule identifies seven different categories of “waters of the United States” (“WOTUS”): traditional navigable waters, all interstate waters (including interstate wetlands), the territorial seas, impoundments, tributaries, adjacent waters, and on a case-by-case basis, waters with a significant nexus to downstream waters. The last three categories are the most controversial and will be discussed in greater detail.