VW Cert Petition Raises Clean Air Act Circuit Split
On August 27, 2021, Volkswagen AG and several affiliates (petitioners) filed a petition for a writ of certiorari to the Supreme Court of the United States seeking to overturn a decision of the Ohio Supreme Court that held the Clean Air Act (CAA) did not preempt state antitampering law. Petitioners assert that the Ohio Supreme Court’s decision was wrong because the CAA preempts state laws regulating emission controls. In support of their request to the U.S. Supreme Court, petitioners argue that there is a growing split among lower courts on the issue of CAA preemption, with the U.S. Court of Appeals for the Ninth Circuit (and now the Ohio Supreme Court) holding that the CAA does not preempt state emission control laws and the Alabama Supreme Court and intermediate appellate courts in Tennessee and Minnesota holding that it does. (more…)
Ninth Circuit Sends San Joaquin Valley Ozone Plan Back to EPA
On Thursday, the U.S. Court of Appeals for the Ninth Circuit granted a petition for review of the Environmental Protection Agency (EPA) final rule approving the State of California’s plan for meeting the ozone air quality standard in the San Joaquin Valley and remanded the plan to EPA for further consideration. EPA approved the plan in 2019, which included a single contingency measure that would be activated if the plan did not achieve reasonable further progress toward meeting the ozone standard. A local environmental group, the Association of Irritated Residents (AIR), challenged the approval and argued that the single contingency measure was arbitrary and capricious because it provided for only nominal emissions reductions. (more…)
DC Circuit Orders EPA to Reconsider 2019 Renewable Fuel Standard Effects on Endangered Species
The U.S. Court of Appeals for the District of Columbia Circuit ruled on July 16 that the Environmental Protection Agency (EPA) must reconsider its 2019 targets under the renewable fuel standard (RFS) related to its potential effects on endangered species. In Growth Energy v. EPA, No. 19-01023 (D.C. Cir.), three groups of petitioners had challenged the rule: renewable energy producers, parties regulated by the RFS requirements, and a group of environmental organizations. (more…)
Congress Rescinds Trump-Era Methane “Policy Rule”
On June 25, 2021, the U.S. House of Representatives voted to rescind a Trump-era methane rule using its Congressional Review Act (CRA) authority, which includes special procedures that allow Congress and the President to rescind certain rules promulgated during a prior administration, within defined time limits. The Senate passed the CRA resolution disapproving the rule on April 28, 2021. The measure garnered bipartisan support in both chambers. Congress presented the resolution to President Biden, who signed it on June 30, 2021.
EPA Rescinds Trump-Era Cost-Benefit Rule
On May 14, 2021, the U.S. Environmental Protection Agency (EPA) rescinded a rule issued during the Trump administration that changed how EPA calculated and presented the costs and benefits of rules under the Clean Air Act (CAA). Advanced on the ground of providing greater transparency, the rule had required EPA to determine the benefits that a new regulation provided directly, while separately valuing the “co-benefits” that would accrue by reducing other pollutants not covered by the new regulation. Industry had argued that EPA regulations should be based solely on the value of reducing the emissions it was authorized to regulate — while opponents argued the rule would ignore obvious benefits and justify weakening regulation.
New Information Collection Request for Ethylene Oxide Air Emissions
On May 10, 2021, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register requesting comments on a new request for information to the commercial sterilization and fumigation sector about the use of ethylene oxide (EO). The request, which was initially distributed to nine EO commercial sterilization facilities, is part of EPA’s technology review of the National Emissions Standards for Hazardous Pollutants (NESHAP). EPA explained that “[w]hile [initial] data gathering efforts have been successful, there are still several important information gaps that should be filled prior to any final rulemaking activity.” (more…)
U.S. Environmental Protection Agency Announces Environmental Justice and Climate Action Initiatives
On April 23, the Administrator of the U.S. Environmental Protection Agency (EPA), Michael Regan, announced three new agency initiatives to support “community-driven solutions” for environmental justice and climate change in North America and across the world. The announcement came in conjunction with President Joe Biden’s Leaders Summit on Climate where the President pledged to cut nationwide net greenhouse gas emissions at least 50% to 52% by 2030 in comparison to 2005 levels. (more…)
U.S. Transportation Department Moves to Revive States’ Authority to Regulate Vehicle Greenhouse Gas Emissions
On April 22, the National Highway Traffic Safety Administration (NHTSA) issued a proposed rule that revokes the agency’s portion of the September 2019 rule, known as SAFE-1 Rule, which sought to preempt states, including California, from issuing their own tailpipe greenhouse gas (GHG) regulations and zero emission vehicle (ZEV) mandates. (more…)
FERC Makes First Significance Determination on Greenhouse Gas Emissions
On March 22, 2021, the Federal Energy Regulatory Commission (FERC or Commission) for the first time issued an order that assessed whether greenhouse gas emissions related to a natural gas pipeline certificate project would significantly contribute to climate change. FERC purported to perform the assessment pursuant to its obligation under the National Environmental Policy Act (NEPA) to take a “hard look” at a project’s environmental impacts.
EPA Finalizes Cross-State Air Pollution Rule
On March 15, 2021, the U.S. Environmental Protection Agency (EPA or the Agency) published a final rule, pursuant to the good-neighbor provision of the Clean Air Act, which directs EPA and states to address interstate transport of air pollution that affects downwind states’ ability to attain and maintain compliance with the 2008 National Ambient Air Quality Standard (NAAQS) for ozone. As we explained previously, the Revised Cross-State Air Pollution Rule (CSAPR) Update is EPA’s rulemaking in response to the U.S. Court of Appeals for the D.C. Circuit’s decision in Wisconsin v. EPA, in which the court remanded an earlier EPA CSAPR update rule. (more…)