31 October 2018

Sidley Environmental Trends

Topics discussed this week include:

  • Supreme Court stays youths’ climate change suit pending review.
  • EPA withdraws proposed uranium mining regulations.
  • Environmental groups request Sixth Circuit reconsider Clean Water Act coal ash pond ruling.
  • EPA Environmental Appeals Board rejects use of battery storage as BACT.

Supreme Court stays youths’ climate change suit pending review. The Supreme Court has stayed an ongoing suit brought in 2015 by 21 children and young adults claiming that the federal government’s alleged failure to curb fossil fuel use and address the effects of climate change violates the plaintiffs’ constitutional rights. The trial was expected to begin in early November in the U.S. District Court for the District of Oregon, but the Supreme Court’s recent order stays further proceedings pending review of the government’s petition for a writ of mandamus. The government argues that the district court, in allowing the case to proceed to trial, erred in finding that the plaintiffs have a substantive due process right to certain climate conditions. The government’s previous attempts to obtain relief from the U.S. Court of Appeals for the Ninth Circuit and the Supreme Court have been unsuccessful.

EPA withdraws proposed uranium mining regulations. The Environmental Protection Agency (EPA) withdrew an Obama administration-era proposed rule under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). Published on January 19, 2017, the proposed rule set forth requirements for the control of byproduct material produced by uranium in-situ recovery (ISR) to address industry practices that EPA believed did not adequately protect nearby aquifers. According to the withdrawal notice, the EPA questions whether the proposed rule exceeded EPA’s authority under the UMTRCA. Further, the EPA no longer believes that the rulemaking is necessary in light of the adequacy of existing regulations and reduced demand for ISR license applications.

Environmental groups request Sixth Circuit reconsider Clean Water Act coal ash pond ruling. Environmental groups, led by the Tennessee Clean Water Network (TCWN), are requesting that the U.S. Court of Appeals for the Sixth Circuit reconsider last month’s panel decision in TCWN v. Tennessee Valley Authority, No. 17-6155, rejecting TCWN’s claim against the Tennessee Valley Authority (TVA) for its discharge of wastewater from coal ash ponds into the adjacent Cumberland River. While TVA has a Clean Water Act permit allowing it to discharge wastewater directly into the river via pipe, at issue on appeal is whether leaks from the pond that reach the river by way of groundwater (i.e., the hydrological connection theory) are also discharges from a point source that must be regulated under the Clean Water Act. In a 2-1 decision, the Sixth Circuit rejected the hydrological connection theory and found that the Clean Water Act does not regulate such discharges. According to TCWN, the Sixth Circuit’s decision is at odds with its 2009 decision in National Cotton Council, et al. v. EPA, where the Sixth Circuit found that pesticide residue and excess pesticides were subject to the Clean Water Act when discharged into navigable waters even if they were not directly and immediately discharged into navigable waters. If upheld, the TCWN would be at odds with decisions in the Fourth and Ninth Circuits that recognized the hydrological connection theory, creating a circuit split ready for Supreme Court review.

EPA Environmental Appeals Board rejects use of battery storage as BACT. EPA’s Environmental Appeals Board denied a petition for review filed by conservation groups challenging a prevention of significant deterioration permit issued by EPA Region 9 to Palmdale Energy, LLC, for operation of its natural gas-fired power plant. The groups challenged EPA’s best available control technology (BACT) analysis, arguing that the plant’s burners should be replaced with battery storage. The board denied the petition and upheld Region 9, finding that the groups failed to show that such technology has been applied on any source similar to Palmdale’s power plant and that even if in technologically feasible, the groups failed to show that battery storage could replace all of the functionality provided by the current burners. However, the board limited its ruling to the specific permit and noted that “what may not be BACT for purposes of this permit application may be BACT for a future permit application,” suggesting that energy storage technology, when sufficiently mature, may be a part of future BACT analyses.

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