Tenth Circuit Rejects EPA’s Position on Renewal of Clean Air Act Permits

On July 2, 2020, in Sierra Club v. United States Environmental Protection Agency, the U.S. Court of Appeals for the Tenth Circuit rejected the Environmental Protection Agency’s (EPA) interpretation of the scope of its obligations to review permits under Title V of the Clean Air Act (CAA). The court found that the plain language of EPA’s regulations requires EPA to review whether a state-issued Title V permit complies with all applicable CAA requirements, not only the requirements the state included in the permit. The issue may end up in the U.S. Supreme Court, as it diverges from a recent ruling by the Fifth Circuit.


Fourth Circuit Rejects NEPA Challenge as Untimely

On July 1, 2020, the U.S. Court of Appeals for the Fourth Circuit dismissed Howard County, Maryland’s, petition to review the Federal Aviation Administration’s approval (FAA) of construction at Baltimore-Washington International (BWI) Airport as inconsistent with the National Environmental Policy Act (NEPA). NEPA requires the federal agencies to conduct environmental assessments of federally licensed projects to determine whether the project will have significant environmental effects. In 1994, Congress provided for a 60-day limitations period covering challenges to certain projects. This limitations period includes challenges to the adequacy of the NEPA review (NEPA does not contain a statute of limitations provision). 49 U.S.C. § 46110(a).


Court Shuts Down Dakota Access Pipeline

On July 6, 2020, Judge James E. Boasberg of the U.S. District Court for the District of Columbia vacated the easement that had been granted to the Dakota Access Pipeline (DAPL) under the Mineral Leasing Act and ordered DAPL to be shut down in 30 days. (more…)

EPA Amends Its COVID-19-Related Temporary Enforcement Guidance

On June 29, 2020, the U.S. Environmental Protection Agency (EPA) amended its COVID‑19‑related temporary enforcement policy. As previously reported, EPA issued temporary COVID-19 Enforcement Guidance on March 26, 2020, providing guidelines on how EPA will, in certain cases, exercise discretion in enforcing environmental legal obligations during the COVID-19 pandemic. (more…)

District Court: Risk Assessment Not Required Every Time EPA Revises Clean Air Act Technology-Based Standard

On June 26, 2020, a federal district court ruled that the U.S. Environmental Protection Agency (EPA) is not required to perform a risk assessment every time it revises its technology-based standards for a hazardous pollution source. Rather, the EPA is required to conduct a risk assessment only in connection with its initial adoption.


California Air Resources Board “First-in-World Rule” Mandates Manufacturers to Increase Percentage of Zero-Emission Truck Sales

On June 25, 2020, the California Air Resources Board (CARB) passed the Advanced Clean Trucks (ACT) regulation, which CARB describes as a “first-in-the-world rule.” Starting in 2024, the regulation requires medium- and heavy-duty truck manufacturers to increase the sales of zero-emission models. The ACT regulation follows the state’s longstanding Zero Emission Vehicle program and 2018 mandate requiring public transit agencies to transition to 100 percent zero-emission bus fleets by 2040.


EPA Plans to Further Regulate Methylene Chloride

On June 19, 2020, the U.S. Environmental Protection Agency (EPA) released its final risk evaluation conducted under the Toxic Substances Control Act (TSCA) for methylene chloride. For its evaluation, EPA reviewed 53 conditions of use for the chemical, which is often used as a solvent. (more…)

EPA Grants Petitions to Add First Chemical to Hazardous Air Pollutants List Since 1990

On June 18, 2020, the U.S. Environmental Protection Agency (EPA) published a Federal Register notice granting petitions to add n-propyl bromide, commonly known as 1-bromopropane (1-BP), to the Clean Air Act’s (CAA) list of hazardous air pollutants (HAPs). Once EPA takes a separate regulatory action to add the chemical to the list of HAPs, the action will represent the first addition to the list since 1990, when it was created. 1-BP is found in degreasers, cleaners, spray adhesives, automotive refrigerant flushes and lubricants. In a draft risk evaluation conducted under the Toxic Substances Control Act (TSCA), EPA noted last year that the chemical could pose “an unreasonable risk of injury to health” under certain conditions of use but did not find any unreasonable risk of injury to the environment. The risk evaluation is ongoing and is expected to be finalized this year.


Texas State Implementation Plan Suit Stayed in the Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit has stayed a lawsuit, Sierra Club v. EPA, brought by a coalition of environmental groups concerning the U.S. Environmental Protection Agency’s (EPA) approval of two revisions to the Texas State Implementation Plan (SIP). This stay is to allow the U.S. Court of Appeals for the D.C. Circuit to decide whether to hear an identical petition for review. (more…)

Fights over EPA’s Enforcement Discretion Policy Continue and May Expand

On June 10, 2020, three environmental groups sent a notice of intent to sue multiple federal agencies, including the U.S. Environmental Protection Agency (EPA). The notice claims that EPA failed to take necessary and reasonable actions to address impacts on endangered and threatened species as allegedly required by the Endangered Species Act, before EPA issued its March 26 COVID-19 enforcement discretion guidance, discussed in further detail here. (more…)