12 March 2019

Sidley Environmental Trends

Topics discussed this week include

  • EPA final rule on monitoring NOx at power plants takes effect
  • EPA and Army Corps withdraw appeals on WOTUS Delay Rule
  • D.C. Circuit rejects NEPA analysis for Dominion Energy
  • Federal court says it has authority to impose injunctive relief for Ameren’s failure to obtain a required permit at its Rush Island facility

EPA final rule on monitoring NOx at power plants takes effect. On March 8, 2019, a final rule took effect that removes states’ obligations to require power plants to track summertime emissions of oxides of nitrogen (NOx). Before the rule, power plants had to use continuous emissions monitoring systems to track NOx emissions. The rule does not identify alternative methods and instead allows states to decide their own preferred alternative methods for monitoring NOx emissions.

EPA and Army Corps withdraw appeals on WOTUS Delay Rule. On March 8, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) moved to voluntarily dismiss their appeals of district court rulings striking down the agencies’ joint rulemaking delaying the 2015 Waters of the United States (WOTUS) Rule. Due to the various district and appeals courts decisions on the rule, this means that the 2015 Rule is applicable in a patchwork of states but not in all states. EPA and the Army Corps have engaged in two rulemakings aimed at repealing and replacing the 2015 WOTUS Rule, respectively, and those rulemakings are ongoing.

D.C. Circuit rejects NEPA analysis for Dominion Energy. On March 1, the U.S. Court of Appeals for the D.C. Circuit issued an opinion on the National Environmental Policy Act (NEPA) analysis the Army Corps applied to a Dominion Energy, Inc. electricity transmission project in Virginia. The appeals court overturned the district court decision below and held that the Army Corps’ finding of no significant impact was arbitrary and capricious. The Army Corps must now prepare an environmental impact statement under NEPA as well as reevaluate its Clean Water Act and National Historic Preservation Act analyses for the project.

Federal court says it has authority to impose injunctive relief for Ameren’s failure to obtain a required permit at its Rush Island facility. On March 1, a federal judge for the U.S. District Court for the Eastern District of Missouri held that the court had jurisdiction to impose injunctive relief for past violations of the Clean Air Act. Previously, the court found Ameren Missouri (Ameren) had failed to obtain a preconstruction permit as required under the Clean Air Act for its Rush Island facility. While the court ruled it had authority to impose injunctive relief — in this case, such as requiring Ameren to apply best available control technology (BACT) at Rush Island — the court said it could not at the summary judgment stage determine as a matter of law what constitutes BACT.

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