23 January 2019

Sidley Environmental Trends

Topics discussed this week include:

  • NRDC sues EPA over New Source Review permitting program.
  • District court stays National Marine Fisheries Service case due to government shutdown.
  • Environmental group sues to force EPA to ban methylene chloride under TSCA.

NRDC sues EPA over New Source Review permitting program. On January 14, 2019, the Natural Resources Defense Council (NRDC) petitioned the D.C. Circuit for review of Environmental Protection Agency (EPA) guidance interpreting when changes to a regulated stationary source must be “aggregated” to assess whether the source must undergo preconstruction New Source Review (NSR) under the Clean Air Act. That action, “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Aggregations; Reconsideration,” was published in the Federal Register on November 15. As reported here previously, EPA’s action revived a 2009 interpretation adopted by the Bush administration but temporarily delayed by the Obama administration as it reviewed an NRDC request for reconsideration. The 2009 interpretation clarified that changes at a source should be considered a single project for NSR consideration only when they are “substantially related” and a rebuttable presumption that activities at a plant can be presumed not to be substantially related if they occur three or more years apart.

District court stays National Marine Fisheries Service case due to government shutdown. On January 18, the U.S. District Court for the District of South Carolina stayed proceedings challenging the National Marine Fisheries Service issuance of incidental harassment authorizations to five oil and gas companies to conduct surveys in coastal waters off of the mid-Atlantic seaboard. South Carolina moved to intervene in the case, and the federal government requested an indefinite stay of the deadline for its response, citing the lapse in appropriations due to the ongoing partial government shutdown. While the court granted the stay, it also enjoined the federal government, specifically the Bureau of Ocean Energy Management, from issuing permits authorizing these surveys because “it would be inappropriate for the Federal Defendants to gain an advantage from a stay or to allow Plaintiffs and petitioning intervenor states to be prejudiced by a stay.” The court relied on the All Writs Act, 28 U.S.C. § 1651(a), as the basis for its decision, pointing to its authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Should the partial shutdown continue and the Department of Justice seek similar stays in ongoing proceedings, plaintiffs may rely on this opinion and the All Writs Act to seek injunctions of the associated federal actions.

Environmental group sues to force EPA to ban methylene chloride under TSCA. On January 14, environmental groups filed suit in the U.S. District Court for the District of Vermont to force EPA to ban the use of paint removal products containing methylene chloride. The environmental groups point to recently amended sections 6(a) and 7 of the Toxic Substances Control Act (TSCA) and argue that EPA has a mandatory duty to take action because the statute states that EPA “shall” ban or restrict chemicals that present “an unreasonable risk to human health or the environment” and seize any “imminently hazardous” substances. Previously, on January 19, 2017, EPA proposed to ban the use of methylene chloride-based paint products based on EPA’s determination they present an unreasonable risk of cancer, heart failure and sudden death, which, the environmental groups contend, former EPA Administrator Scott Pruitt reaffirmed in testimony before Congress. As a result, the environmental groups argue that EPA is required by law to finalize its proposed rule and ban the substances. Because EPA has not acted on the environmental groups’ 60-day letter, the groups now seek an injunction from the district court to compel what they believe is a mandatory action under TSCA.

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