18 October 2017

Sidley Environmental Trends

Topics discussed this week include:

  • EPA announces plans to repeal the Clean Power Plan.
  • D.C. District Court permits oil to continue flowing through Dakota Access.
  • Supreme Court wades into Clean Water Act venue fight.
  • EPA issues memo and directive to end “Sue and Settle.”
  • Split Ohio Supreme Court denies writs of mandamus for fracking ballot amendment.

EPA announces plans to repeal the Clean Power Plan. The U.S. Environmental Protection Agency has formally proposed to repeal the Clean Power Plan (CPP), the Obama administration’s signature climate rule. The EPA previously claimed the CPP would cut carbon emissions 32 percent by 2030, but the Supreme Court had stayed the rule pending challenges in federal court. The EPA proposal now argues that by promulgating the CPP, the EPA had exceeded the bounds of its Clean Air Act authority. In announcing the action, the EPA’s regulatory analysis suggested that repealing the rule will aid development of local energy resources and remove unnecessary regulatory hurdles. The proposal follows President Donald Trump’s March 28, 2017, executive order directing the EPA to review and possibly eliminate or replace the CPP and other rules relating to energy generation. The proposed repeal does not lay out a replacement plan, but the EPA has reportedly sent to the Office of Management and Budget an advance notice of proposed rulemaking seeking comment on additional options. Environmental groups and several states are already planning to challenge the proposed repeal. On Oct.17, a coalition of states and municipalities that back the CPP and environmental groups filed separately in the D.C. Circuit to urge the court to issue a merits ruling or limit any new abeyance of the rule.

D.C. District Court permits oil to continue flowing through Dakota Access. On Oct. 11, D.C. District Court Judge Boasberg agreed to allow the controversial Dakota Access pipeline to continue operation while the U.S. Army Corps of Engineers performs additional environmental review of the project. In June, the same judge had ordered the Army Corps to reconduct part of its analysis under the National Environmental Policy Act because the Corps had not adequately considered certain effects of the project, including the risk of oil spills, environmental justice impacts and effects on tribal hunting and fishing rights. Despite arguments from the Standing Rock and Cheyenne River Sioux tribes that the court should order the operator to shut down the pipeline pending this review, Judge Boasberg ordered that pipeline operation under Lake Oahe not be halted because the Army Corps may be able to justify its prior findings on remand. The court warned the Corps, however, that the agency should not treat the decision as a formality and should give serious consideration to the issues identified in the court’s June opinion. The Corps expects to complete its review in spring 2018.

Supreme Court wades into Clean Water Act venue fight. Last week, the Supreme Court heard arguments over whether the federal appeals or district courts should hear challenges to the Clean Water Rule. The EPA and the U.S. Army Corps of Engineers issued the Clean Water Rule, also known as the Waters of the U.S., or WOTUS, in 2015. The controversial rule sought to establish the scope of federal jurisdiction over the nation’s waters by establishing a regulatory definition of “waters of the United States,” a phrase used but not defined in the Clean Water Act. Numerous lawsuits challenging the rule were filed in appeals and district courts. The Sixth Circuit decided in 2016 that it had jurisdiction over the challenges, and in January, the Supreme Court agreed to hear a petition seeking to overturn the appellate court’s decision. Petitioners have argued that challenges to the rule belong in district court because it is a definitional rule that does not fall under the specific categories for which the Clean Water Act grants review to appellate courts. The government, however, contends review would be more efficient if addressed by an appeals court rather than in multiple district court actions. The outcome of this litigation will not go to the merits of the rule, but a decision should determine where challenges to future Clean Water Act rules will be heard, including expected challenges to the Trump administration’s June 2017 proposal to repeal the Clean Water Rule and any subsequent rules that may result from the administration’s rulemaking process.

EPA issues memo and directive to end “Sue and Settle.” On Oct. 16, EPA Administrator Scott Pruitt issued a directive and supporting memorandum limiting the types of legal agreements the EPA can reach with outside parties. In recent years, the EPA and other agencies have resolved litigation brought by groups seeking to compel the agencies to regulate by agreeing to specific timelines to act and reimbursing plaintiffs’ attorneys fees. The Administrator’s Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements terminates this “sue and settle” approach, explaining that “EPA will not resolve litigation through backroom deals with any type of special interest group.” It also establishes public participation procedures for the agency in lawsuits against the EPA, including requiring the agency to publish any notice of intent to sue or actual notice of a lawsuit within 15 days of receiving it; reach out to states and other regulated entities potentially affected by the suits within 15 days of service or petition for review; post any proposed or modified consent decrees and settlements for a 30-day public comment period; not enter into a consent decree or settlement agreement that converts an “otherwise discretionary duty of the Agency into a mandatory duty”; and seek to exclude the payment of attorney’s fees to any plaintiff because there is no “prevailing party” in a settlement agreement.

Split Ohio Supreme Court denies writs of mandamus for fracking ballot amendment. On Oct. 6, in a 4-3 decision in State ex rel. Flak v. Betras, the Ohio Supreme Court denied writs of mandamus sought by supporters of the People’s Bill of Rights for Fair Elections and Access to Local Government and the Youngstown Drinking Water Protection Bill of Rights amendments to the Youngstown City Charter. The water protection amendment would have given the municipality the authority to enact a measure denying developers permission to drill oil and gas wells using hydraulic fracturing techniques. The amendments also would have authorized private citizens to take nonviolent direct action to prevent drilling or to file suit as private attorneys general. The Board of Elections voted not to certify the amendments to appear on the ballot on the grounds that they exceeded the city’s initiative power, and the Ohio Supreme Court upheld the decision. The Court ruled that the board did not violate a clear legal duty when it refused to certify the petitions to place the proposed amendments on the ballot.

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