EPA's Clean Power Plan: Analysis of the D.C. Circuit Court Argument in West Virginia v. EPA
June 7, 2016
12:15 pm - 2:00 pm
Beveridge & Diamond in Washington DC
On June 2 and possibly June 3, the D.C. Circuit will hear oral argument on the challenge to EPA's Clean Power Plan issued under Section 111(d) of the Clean Air Act. The Clean Power Plan aims to impose regulatory controls on greenhouse gas emissions from the power sector by requiring existing power plants by mandating state-by-state GHG emissions reductions goals. Twenty eight states and almost 150 petitioners filed suit challenging the Clean Power Plan while 18 states joined by environmental and public health groups and 200 members of Congress are supporting EPA as intervenors and amici. Leading practitioners will provide their perspectives on oral argument, the various directions the court might go, and how such decisions might impact future actions by the Environmental Protection Agency.
- David Doniger, Director and Senior Attorney, NRDC
- Tristen Duncan, Counsel, Peabody Energy Corporation
- Elbert Lin, Solicitor General, West Virginia
- Ethan Shenkman, Deputy General Counsel, U.S. EPA
Moderator: David Friedland, Principal, Beveridge & Diamond, P.C.
50 State Survey –A Complimentary Supplement to Chapter 11: The State Response to Climate Change, GLOBAL CLIMATE CHANGE AND U.S. LAW, 2ND (Michael B. Gerrard and Jody Freeman, eds)
This comprehensive 602 page survey has been prepared by Kelly Nishikawa, Benjamin Lowenthal and other students at Pace Law School’s Global Center for Environmental Legal Studies, under the oversight of the Associate Director of Environmental Law Programs, Laura Jensen. This very valuable reference document accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014), available online at the ABA webstore. It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels and renewable energy legislation (such as tax credits for hybrid vehicles) are very similar from state to state; some laws have a short duration and therefore may not be codified (such as temporary tax credits); energy legislation is being enacted at an increasing pace. As a result, not all energy efficiency, alternative fuels and renewable energy legislation and other activity in every state are included in this compilation.
View the survey >>
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The Air Quality Committee provides a valuable forum and practical resources for lawyers interested in air-related issues to: (1) keep up to date on new developments, through extensive communications such as newsletters, satellite conferences and seminars; (2) exchange ideas and best practices with other practitioners around the country; and (3) stay involved with the environmental lawyer community by contributing to various Section publications and participating in Section events.
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Welcome to the ABA Section of Environment, Energy and Resources (SEER) Air Quality Committee website!
As anyone who practices in the area of air quality knows, significant federal Clean Air Act and related regulatory developments continue to occur at breakneck speed, and it can be challenging to stay abreast of the latest developments at the state and federal level throughout the United States. The Air Quality Committee is here to help. We act as a forum for information exchange among air quality practitioners and other SEER committees. We strive to keep our members current on the latest developments through timely and informative communications via our website and listserv, social media, newsletters, conference programs, Committee conference calls, webinars, SEER’s Year-in-Review, and other publications.
For example, we recently published a joint newsletter with the Climate Change, Sustainable Development, and Ecosystems Committee that focuses exclusively on the Clean Power Plan. Our program vice chairs have been integral in planning the Emerging Air and Climate Issues Series of webinars and are hoping to host a committee call on the Startup, Shutdown, and Maintenance/Malfunction SIP call. We have also co-sponsored several panel discussions with the D.C. Bar that covered timely issues and recapped oral arguments in key cases.
We encourage you to participate in this exchange by submitting articles for the newsletter, suggesting topics for conferences or webinars, sending us key agency and court decisions, policy documents, or briefs on air quality issues, and posting and commenting on our social media pages. If you write an air quality-related article or blog post, we can link to it on our website upon request, or feel free to post it to our LinkedIn page or tweet it at our social media chair @snowden_enviro and tag it with #abaairquality. All of the 2015-2016 Committee vice-chairs are listed under the Committee Leadership link on the right side of this website. Feel free to reach out to me or the appropriate vice-chair if you have any suggestions, questions, or information to share.
45th Spring Conference: The ABA Conference on Environmental Law
The 45th Spring Conference will take place in Austin from March 30 – April 1, 2016 (and will be immediately preceded by the 34th Water Law Conference in the same location). Our committee was able to help plan an exciting panel called “Achieving the New Ozone NAAQS – the Search for Solutions” featuring top notch presenters from states around the country. Other panels that will undoubtedly discuss air issues include “Hot Topics in Enforcement,” “Region 6: Permitting, Compliance, Enforcement,” “Supreme Court Roundup,” “State 111(D) Compliance Plans,” and “Obama’s Legacy on Climate Change.” The Public Service Project is scheduled for March 30 from 1:00 to 4:00 p.m. Participants will partner with Keep Austin Beautiful for shore clean up and habitat restoration along Lady Bird Lake. We hope you can attend!
Changing Jobs? Promoted? Let the Section know!
When you start a new job or position or receive prestigious promotions or appointments, please let the Section know by contacting Ellen Rothstein, the Section’s publications manager, at Ellen.Rothstein@americanbar.org with the news. Your information will appear in People on the Move for the ABA SEER E-News email, the Trends electronic newsletter, and Section Member Update.
Feel free to send comments or ideas for the committee to me. On behalf of the AQC leadership team, thank you for your membership.
Air Quality Committee Chair, 2015-2016
Supreme Court Stays U.S. EPA’s Clean Power Plan
On February 9, 2016, the U.S. Supreme Court stayed U.S. EPA’s implementation of its Clean Power Plan regulation pending disposition of petitioners’ lawsuit in the U.S. Court of Appeals for the D.C. Circuit and, if sought, any petition for a writ of certiorari filed with the U.S. Supreme Court. If a writ of certiorari is sought and the Supreme Court denies the petition, the orders will terminate automatically. If the Court grants any petition for a writ of certiorari, its orders shall terminate when the Court enters its judgment in the case. The Court’s orders can be accessed here:
D.C. Circuit Denies Challenge to SO2 Nonattainment Designation
On November 3, 2015, the U.S. Court of Appels for the D.C. Circuit denied review of petitions challenging U.S. EPA's final rule designating two areas as nonattainment for sulfur dioxide (SO2). A copy of the decision can be accessed here: https://www.cadc.uscourts.gov/internet/opinions.nsf/
EPA Lowers Ozone NAAQS
On October 1, 2015, EPA lowered the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb). The new NAAQS will replace the 2008 standard of 75 ppb, which EPA found inadequate to protect public health with an adequate margin of safety. The Final Rule and supporting information is available here: http://www3.epa.gov/ozonepollution/actions.html#sep2015
U.S. EPA Proposes To Regulate Methane Emissions From Oil and Natural Gas Sector
On August 18, 2015, the U.S. EPA proposed its first ever regulation of methane emissions from new and modified sources for the oil and natural gas sector. The proposed regulation would amend the agency’s existing new source performance standards (NSPS) for the oil and natural gas source category by setting standards for both methane and volatile organic compounds (VOC) for specific equipment, processes and activities, including hydraulically fractured natural gas and oil wells. The proposed rule can be accessed here: https://www.federalregister.gov/articles/2015/09/18/2015-21023/oil-and-natural-gas-sector-emission-standards-for-new-and-modified-sources
EPA’s fact sheet can be accessed here: http://www3.epa.gov/airquality/oilandgas/pdfs/og_fs_081815.pdf
D.C. Circuit Upholds EPA Gas Emissions Rule
On July 14, 2015, the U.S. Court of Appeals for the D.C. Circuit, denied a petition from biofuel producers challenging U.S. EPA’s regulation regarding test fuels, finding that it is reasonable for the agency to require that test fuels be “commercially available” before they can be approved. A copy of the opinion can be accessed here.
D.C. Circuit Preserves Transport Rule
On July 28, 2015, the U.S. Court of Appeals for the D.C. Circuit largely upheld EPA’s plan to control cross-state air pollution under its Cross-State Air Pollution Rule (the Transport Rule), but ordered the agency to reconsider its 2014 emissions budgets for “upwind” states. While the D.C. Circuit remanded the Transport Rule to EPA to reconsider such emissions budgets, it rejected all of petitioners’ other challenges to the Transport Rule, including all facial challenges to the rule. A copy of the opinion can be accessed here.
D.C. Circuit Denies Petitions Challenging EPA’s Proposed Clean Power Plan
On June 9, 2015, the U.S. Court of Appeals for the D.C. Circuit denied both petitions for review and the petition for a writ of prohibition challenging EPA’s proposed Clean Power Plan, because the “complained-of agency action is not final.” Judge Henderson filed a separate opinion concurring in the judgment, but she would find that there is jurisdiction under the All Writs Act, but still would deny relief to the petitioners.
The decisions can be accessed here and here.
EPA Publishes Rule For Implementation of the 2008 Ozone NAAQS SIP Requirements
On March 6, 2015, EPA published its final State Implementation Plan (SIP) requirements rule implementing the 2008 ozone NAAQS and addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM), major new source review (NSR), emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also addresses the revocation of the 1997 ozone NAAQS and anti-backsliding requirements that apply when the 1997 ozone NAAQS are revoked.
A link to the rule can be accessed here: http://www.gpo.gov/fdsys/pkg/FR-2015-03-06/pdf/2015-04012.pdf. A link to the EPA fact sheet can be accessed here: http://www.epa.gov/airquality/ozonepollution/pdfs/20150213fs.pdf.
EPA Announces Proposal To Update Ozone NAAQS
On November 25, 2014, the U.S. EPA announced its proposal to update National Ambient Air Quality Standards (NAAQS) for ground-level ozone. The EPA is proposing to revise both the primary and the secondary standards to a level within the range of 65 ppb to 70 ppb. (The current primary and secondary ozone standards are 75 ppb.) EPA will also accept public comment on retaining the current 75 ppb ozone standard or lowering the standard to 60 ppb. EPA will take comment on the proposal for 90 days after it is published in the Federal Register and will hold three public hearings. It plans to adopt a final rule by October 1, 2015. EPA's proposal, fact sheets, information on estimated benefits and costs, maps and tables, and other pertinent information may be found here.
Fifth Circuit Holds Clean Air Act NOVs Are Not Final Agency Action
On July 3, 2014, the Fifth Circuit Court of Appeals held that Notices of Violation (NOV) issued by U.S. EPA under Section 7413(a) of the federal Clean Air Act do not constitute a final agency action and are not subject to judicial review. The Fifth Circuit’s opinion can be accessed here.
Ninth Circuit Vacates EPA’s PSD Permit for Avenal Power Plant
On August 12, 2014, the U.S. Court of Appeals for the Ninth Circuit vacated U.S. EPA’s PSD permit issued for the Avenal Power natural gas-fired power plant in California that "grandfathered" the facility from having to meet greenhouse gas (GHG) and stricter conventional pollutant limits finalized during the permitting process. A three-judge panel found that the federal Clean Air Act requires EPA to ensure that proposed industrial projects comply with regulations in effect at the time of issuing a permit, not those when the permit application was first filed. The 9th Circuit’s Opinion can be accessed here.
SCOTUS Invalidates EPA’s Tailoring Rule; Upholds GHG BACT For "Anyway" Sources
On June 23, 2014, the U.S. Supreme Court rendered its decision in the Clean Air Act greenhouse gas (GHG) Prevention of Significant Deterioration (PSD) cases. The Supreme Court held that: (1) The Act neither compels nor permits U.S. EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or federal Title V permit on the sole basis of its potential GHG emissions; and (2) U.S. EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with the Best Available Control Technology (BACT) for GHG emissions. The opinion can be accessed here.
EPA Releases Proposed GHG Emission Standards For Existing Power Plants
On June 2, 2014, U.S. EPA announced the release of its highly anticipated proposed greenhouse gas (GHG) emission standards for existing power plants. The proposed rule will require existing power plants to reduce GHG emissions by an average of 30 percent from 2005 levels by 2030. Emission reduction targets will be set on a state-by-state basis taken into account reductions states have already made. The rule is expected to be completed by June 2015 and will give states up to one year to develop and submit implementation plans to EPA. In addition, states will have the ability to request extensions of up to two additional years to complete their plans. There will be a 120-day public comment period beginning on the date of publication in the Federal Register. There will be four public hearings across the country during the week of July 28, 2014. EPA’s proposed rule and associated Fact Sheets can be accessed here.
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