08 May 2018

Sidley Environmental Trends

Topics discussed this week include:

  • BLM appeals order blocking Waste Prevention Rule rescission.
  • Supreme Court rejects pipeline, other environmental petitions.
  • EPA proposes “secret science” rulemaking.
  • States sue to vacate midterm evaluation.
  • EPA issues six-month extension of time to respond to New York 126 Petition.

BLM appeals order blocking Waste Prevention Rule rescission. The U.S. Bureau of Land Management (BLM) filed an appeal with the U.S. Court of Appeals for the Ninth Circuit to reverse a Northern District of California judge’s preliminary injunction staying a final rule to delay compliance dates for the 2016 Waste Prevention Rule. The Waste Prevention Rule imposed methane emission reductions on oil and gas operations on federal and Indian lands. Industry groups and some states criticized the Rule as unnecessarily costly and duplicative of existing state regulations. Since the Northern District of California’s preliminary injunction, the District Court of Wyoming, which is handling an appeal of the 2016 Waste Prevention Rule filed by states and industry groups, stayed the Rule. Environmental groups appealed the stay to the Tenth Circuit and the states of Wyoming and Montana moved to dismiss the appeal for lack of jurisdiction. BLM is working on a final rule that would revise the 2016 Waste Prevention Rule’s requirements.

Supreme Court rejects pipeline, other environmental petitions. The U.S. Supreme Court will not review a Second Circuit decision holding that the New York State Department of Environmental Conservation was justified in denying a Clean Water Act § 401 certification for a proposed natural gas pipeline. Constitution Pipeline, LLC argued that states are abusing their Clean Water Act certification authority to block federally approved interstate pipelines, raising national security concerns. The Court also rejected the North Coast Railroad Authority’s petition to review a California Supreme Court decision holding that federal railroad regulations administered by the Surface Transportation Board preempted the California Environmental Quality Act for privately owned railroads but not for the state-owned North Coast Railroad Authority. It also rejected the Public Service Company of New Mexico’s petition for review of a Tenth Circuit decision that barred the renewal of a right-of-way through land allotted to Navajo Nation tribal members for a high-voltage power line. The Navajo Nation acquired a partial ownership interest in two of the 57 allotted parcels along the right-of-way, blocking renewal of the right-of-way and, the Tenth Circuit ruled, prohibiting condemnation of the parcels. The Public Service Company of New Mexico argued that the Tenth Circuit’s ruling threatened the renewal of many pipeline and power line rights-of-way that will soon expire. The U.S. Supreme Court is still considering a petition to review a Montana Supreme Court decision holding that the Comprehensive Environmental Response, Compensation & Liability Act’s bar on pre-enforcement review does not prohibit state common law tort claims that demand restoration damages that could impose stricter cleanup requirements than those imposed by the Environmental Protection Agency (EPA). The Superfund site at issue is a copper smelter where a company has spent 35 years and $470 million on remediation. Landowners within the site’s boundaries are seeking damages to be placed in a trust account for remedial activities that are more stringent than what EPA has required.

EPA proposes “Secret Science” rulemaking. Under a proposed rule, EPA would prohibit the use of scientific studies to support new regulations unless the studies’ underlying data is publicly available for independent validation. EPA asserts that the rule is necessary for more transparent rulemakings and to restore public confidence in how the agency regulates. Critics argue that important public health regulations have used confidential data while industry groups note that pesticide registrations rely on confidential business information. EPA is seeking comment on how to incorporate the proposed rule’s transparency requirements into grant decisions and whether exceptions are needed to comply with statutes involving the protection of personal privacy, trade secrets, and national and homeland security information. Although EPA allotted 30 days for public comment, several groups have requested additional time.

States sue to vacate Mid-Term Evaluation. California is leading a challenge by 17 states and the District of Columbia claiming that EPA’s revised position on model year 2022 to 2025 tailpipe exhaust standards for Light Duty Vehicles was arbitrary and capricious. Clean Air Act regulations required EPA to issue a Mid-Term Evaluation of model year 2022-25 vehicle emission standards by April 1, 2018, to determine whether the standards were still appropriate. EPA issued its evaluation on Jan. 12, 2017, just prior to the change in administrations. It found that the 54.5 mile per gallon standard could be attained, even though it is 10 miles more per gallon than the current standard. More recently, EPA revised its Mid-Term Evaluation, issuing a decision signed April 2, 2018, finding, among other things, that new information on fuel prices and technology meant that assumptions underlying the agency’s January 2017 evaluation had been unrealistically optimistic. Although the revised Mid-Term Evaluation only states that EPA would undertake a new rulemaking with the National Highway Traffic Safety Administration to evaluate setting new standards, the plaintiffs claim that EPA’s decision is a final agency action subject to review under the Administrative Procedure Act. Thirteen of the 18 jurisdictions filing suit have already adopted California’s more stringent 2022-25 standards.

EPA issues six-month extension of time to respond to New York 126 Petition. In March, the State of New York filed a petition with EPA under Section 126 of the Clean Air Act asserting that nine upwind states were interfering with New York’s compliance with the 2008 and 2015 national ambient air quality standards for ground-level ozone. The CAA directs EPA to respond to CAA §126 petitions in 60 days, but the Act authorizes EPA to extend its time to respond to these petitions for six months. On May 4, EPA issued a notice extending the deadline for the agency to respond to the state’s petition until Nov. 9, citing its authority under CAA §307(d)(10) and the need for the agency to have more time to consider the petition and allow for public participation in the process.

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