05 November 2019

Sidley Environmental Trends

Topics discussed this week:

  • A wave of litigation begins as both supporters and opponents of the Trump administration’s repeal of the Obama-era Clean Water Rule file suit
  • D.C. Circuit declines to review EPA’s revised midterm evaluation of auto GHG standards but reminds agency of need to provide reasoned explanation to revise the standards
  • Interior Department finalizes FOIA rules

A wave of litigation begins as both supporters and opponents of the Trump administration’s repeal of the Obama-era Clean Water Rule file suit

  • On October 22, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) published a final rule to repeal the 2015 Clean Water Rule, which sought to define the scope of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). In the final rule, the agencies determined that the WOTUS definition exceeded the scope of authority granted by the CWA and that in promulgating the WOTUS rule, the agencies had failed to adequately recognize state authority and rights under the CWA. In response, two groups filed lawsuits, which may be the first volley in a series of battles over the repeal rule that will likely ensue. On the same day the agencies published the repeal rule, in New Mexico, the New Mexico Cattle Growers’ Association (plaintiff) argued that the agencies cannot revert to the regulations that the Army Corps adopted in 1986 defining “navigable waters,” which according to the plaintiff have been invalidated by the Supreme Court and are otherwise illegal. The following day in South Carolina, a coalition of environmental groups (plaintiff) called the repeal rule the agencies’ “latest arbitrary and unlawful attempt” to repeal the Clean Water Rule and argued that the agencies’ actions violate the Administrative Procedure Act and Due Process Clause.

D.C. Circuit declines to review EPA’s revised midterm evaluation of auto GHG standards but reminds agency of need to provide reasoned explanation to revise the standards

  • On October 25, the U.S. Court of Appeals for the District of Columbia declined to review, for lack of jurisdiction, the EPA’s 2018 analysis, titled “Mid-term Evaluation of Greenhouse Gas Emissions Standards for Model Year 2022-2025 Light-Duty Vehicles.” The 2018 midterm analysis reversed EPA’s 2017 finding, which had supported the greenhouse gas (GHG) emission and fuel economy standards adopted in 2012 for model year 2022–25 vehicles. Shortly after issuing the 2018 analysis, EPA proposed to adjust the 2012 standard through the Safer Affordable Fuel Efficiency Vehicles (SAFE Vehicles) rule, a part of which is currently challenged in the D.C. Circuit. Rejecting a suit filed by states and environmental groups, a unanimous three-judge panel explained that the 2018 analysis is not a final agency action as it did not change the 2012 standards and therefore is not subject to judicial review. The same panel, however, also offered that the 2018 analysis, while concluding that the 2012 standards were “not appropriate,” did not erase the voluminous evidence developed for the 2017 finding. The panel added that to ultimately change the 2012 standards, the agency will need to provide a “reasoned explanation” for disregarding the record developed for the 2017 finding.

Interior Department finalizes FOIA rules

  • On October 25, the Department of the Interior released a final rule establishing procedures to respond to Freedom of Information Act (FOIA) requests that did not include language that had been in the proposed rule that would have allowed the department’s denial of an information request based on its description or on the quantity of records requested. Interior had issued a proposed rule in December 2018 that commenters complained would have imposed requirements for requestors to specify their requests and allowed for processing limits that do not comport with the statutory parameters of FOIA. The rule will be effective 30 days after its publication in the Federal Register.
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