13 November 2017

Sidley Environmental Trends

Topics discussed this week include:

  • Two lawsuits allege that state and federal officials violated youth plaintiffs’ constitutional rights by failing to sufficiently fight climate change.
  • EPA issues directive on advisory committees.
  • EPA issues final attainment area designations for ozone NAAQS for most areas of the United States.
  • EPA issues NODAs regarding 2016 NSPS for oil and gas industry.
  • Senate confirms nominee for EPA Assistant Administrator for the Office of Air and Radiation.
  • Ninth Circuit limits reach of RCRA’s antiduplication provision.

Two lawsuits allege that state and federal officials violated youth plaintiffs’ constitutional rights by failing to sufficiently fight climate change. A pair of new lawsuits claims that various governmental officials and agencies are violating youth plaintiffs’ constitutional rights due to failure to sufficiently combat climate change. In the first lawsuit, youth plaintiffs sued the state of Alaska, its governor and various other state officials and agencies in state court. The complaint alleges that the defendants have violated plaintiffs’ due process, equal protection and public trust rights under the Alaska constitution by causing and contributing to climate change through permitting fossil fuel development and insufficiently reducing greenhouse gas emissions. The plaintiffs seek a court order requiring Alaska to prepare an accounting of Alaska’s greenhouse gas emissions and to develop a “climate recovery plan” imposing an enforceable carbon budget on the state. The plaintiffs filed their complaint after the state Department of Environmental Conservation (DEC) denied their August 2017 petition for a rulemaking, which called for DEC to issue a rule requiring the state to reduce its CO2 emissions by 85 percent below 1990 levels by 2050, among other requests. The Alaska case is supported by Our Children’s Trust, which brought a similar lawsuit in the federal District of Oregon, which the U.S. Court of Appeals for the Ninth Circuit has stayed pending resolution of the United States’ mandamus petition. In the second lawsuit, filed in the Eastern District of Pennsylvania, an environmental group and two youth plaintiffs sued the United States, President Donald Trump, the Environmental Protection Agency (EPA), Department of Energy and their heads. That complaint alleges that specific Trump administration actions violate the plaintiffs’ due process and public trust doctrine rights and requests a court order prohibiting what it characterizes as the defendants’ “rollbacks.”

EPA issues directive on advisory committees. EPA Administrator E. Scott Pruitt issued a directive intended to strengthen and improve membership on the agency’s advisory committees. The directive called for EPA, consistent with applicable laws and regulations, to apply the following four principles in setting membership on its advisory committees: (1) strengthen member independence; (2) increase state, tribal and local government participation; (3) enhance geographic diversity; and (4) promote fresh perspectives. To achieve the first goal, the directive bars current recipients of EPA grants as principal investigators or co-investigators, as well as those “in a position that otherwise would reap substantial direct benefit” from such grants, from serving on EPA federal advisory committees. Administration supporters in the Congress applauded the move, while critics expressed concerns that it would mean an undue role for industry stakeholders.

EPA issues final attainment area designations for ozone NAAQS for most areas of the United States. EPA issued a final rule addressing which areas of the United States are in attainment of the 2015 ozone National Ambient Air Quality Standard (NAAQS). The agency found that 2,646 of the over 3,100 counties in the United States are in attainment of the ozone NAAQS. EPA will continue to review the designation of the remaining counties. In June 2017, EPA announced a plan to extend the deadline for making attainment designations by one year, but in August the agency withdrew that proposal and instead determined to issue attainment designations on a case-by-case basis. Section 107(d)(1)(B) of the Clean Air Act requires EPA to issue area designations within two years of promulgating a NAAQS but allows the agency to extend the period for an additional year under certain circumstances. Environmental NGOs criticized EPA’s approach, asserting that the statute did not give EPA the option of addressing only some of the counties and threatened to challenge EPA’s action.

EPA issues NODAs regarding 2016 NSPS for oil and gas industry. EPA issued two notices of data availability (NODA) in support of its proposed stays of various portions of the 2016 New Source Performance Standards (NSPS) for the oil and gas industry known as the Quad Oa rule. On June 16, EPA issued both a proposed two-year stay of the Quad Oa requirements governing fugitive emissions, well site pneumatic pumps and professional engineer certification of closed vent systems and a separate proposed three-month stay to run during a gap between the publication and effective dates of the two-year stay. The NODA on the two-year stay solicits comments on EPA’s legal authority to stay the deadline by extending the phase-in of the compliance schedule for Quad Oa and on the technological, resource and economic challenges associated with implementing the areas highlighted in the June proposal, as well as additional issues noted in the NODA. The NODA also provides an updated cost-benefit analysis for the two-year stay. The NODA for the three-month stay largely tracks the contents of the two-year stay NODA. The comment periods for both NODAs end on Dec. 8.

Senate confirms nominee for EPA Assistant Administrator for the Office of Air and Radiation. The Senate confirmed Bill Wehrum as EPA’s Assistant Administrator for the Office of Air and Radiation (OAR) by a 49-47 vote. Wehrum had served as the OAR Acting Assistant Administrator during the George W. Bush administration and most recently worked as a partner at an international law firm. OAR will be involved in many of EPA’s major initiatives under Administrator Pruitt, such as the proposed repeal of the Clean Power Plan and the Quad Oa regulations and Clean Air Act New Source Review reform.

Ninth Circuit limits reach of RCRA’s antiduplication provision. The Ninth Circuit issued an opinion that reflected a limited interpretation of the scope of the Resource Conservation and Recovery Act’s (RCRA) antiduplication provision, which provides that RCRA shall be construed to apply to or authorize state regulation of “any activity or substance” regulated under several other federal statutes, including the Clean Water Act (CWA). Here, the district court held that the antiduplication provision barred plaintiffs’ RCRA citizen suit claims related to defendant’s stormwater discharges, since EPA could require National Pollutant Discharge Elimination System permits for stormwater discharges such as the defendant’s, although it had not done so. The Ninth Circuit reversed the district court’s opinion, concluding that the antiduplication provision only bars “RCRA’s application” if “that application contradicts a specific mandate imposed under the CWA.” Because the defendant’s stormwater discharges were not currently regulated under the CWA, the antiduplication provision did not bar plaintiffs’ RCRA citizen suit.

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