Archive for the ‘Clean Air Act’ Category

The EPA, Greenhouse Gases, the D.C. Circuit, and Political Warfare

Photo via D.C. Circuit Court of Appeals

Photo via D.C. Circuit Court of Appeals

The Obama administration, increasingly frustrated by Congressional hostility to any efforts to contain greenhouse gases, has turned to the EPA as a tool for reining in carbon emissions. The agency is developing regulatory standards under the Clean Air Act to reduce carbon pollution on a number of fronts. It is coordinating with the National Highway Traffic Safety Administration to promote new technologies with the goal of reducing carbon dioxide emissions from motor vehicles by 3,100 million metric tons by the year 2025.  It is implementing rules requiring minimum amount of renewables in transportation fuel, setting national limits on carbon emissions by power plants, and implementing rules which are expected to bring about a 95% reduction of  volatile organic compound emissions from fracking gas wells. Where Congress has refused to act, the Agency has embarked on an aggressive and far-reaching effort to fill the void.

But the agency’s efforts to curb America’s copious carbon discharge may encounter a fatal snag in an unexpected place: the Court of Appeals for the District of Columbia Circuit. It is this court, arguably the second most important in the country, which reviews decisions and rule-making by many federal agencies,including the EPA, and has jurisdiction over regulations enacted under the Clean Air Act, the very act upon which the EPA is basing its regulations. The D.C. Circuit Court has a conservative reputation and environmentalists have been growing increasing concerned about the likelihood of it de-clawing the EPA’s efforts. As Steven Pearlstein has written in the Washington Post, the D.C. Circuit represents a “ new breed of activist judges …waging a determined and largely successful war on federal regulatory agencies.”

Without question, the court is well positioned to block the administration’s efforts to regulate greenhouse gas emissions via agency action. The administration, however, is determined to counter-balance the political composition of the court. The court currently has three empty spots on the bench.  The administration has put forth candidates to fill the vacant seats, a move which has some Republican politicians reaching for Orwellian political analogies. Senators Mitch McConnell and Charles E. Grassley accused Obama of “court-packing”, as though simply filling long-vacant seats on the court were the equivalent of President Roosevelt’s efforts to expand the size of the Supreme Court, a plan that would have resulted in a total of six new justices at the time. The senators know perfectly well that the D.C. court, like many others across the nation, is under staffed – it’s just in their interests to keep it that way. A dysfunctional, chronically short-staffed, and conservative court is exactly what is called for to keep the EPA’s hands off the climate control switch. The New York Times has called Republican intransigence on filling the court’s vacancies “something not far from a crisis in our constitutional system.”

Readers of this blog are well aware of the necessity of tackling global climate change. Faced with a stone wall of willful denialism and industry resistance, the administration had little choice but to turn to the EPA. The political battle over greenhouse gas emissions has now shifted inexorably to the courts: The Republican’s bone-deep hostility to regulation has assured it. Filling the D.C. court’s empty seats is likely to provoke more than a skirmish. It could turn into a major battle in the country’s – and the globe’s – efforts to keep from cooking itself to death.

China Is “All Out of Love” For Its Air Supply

Photo by Erik Charlton. Some rights reserved.

Photo by Erik Charlton. Some rights reserved.

Last summer, we reported on a Twitter account operated from the U.S. embassy in Beijing (@BeijingAir) which tweets hourly reports on the air quality levels in Beijing. We noted in our report that the Chinese government was hoping to get the account shut down and, while it is still up and running at the time of writing this, a cursory glance at any of its tweets makes it easy to see why. The pollutant levels are almost always deemed “Hazardous,” and at certain times, the quality is pushed into the category “Beyond Index,” which, to me, is utterly terrifying.

This week, the AP reported extensively on the worsening air quality in Beijing and northern China in general, where thick blankets of hazardous smog got so bad this week that airports were forced to cancel flights due to poor visibility, and 103 factories were also temporarily shut down by the Beijing government to prevent further pollution of the air. Hospitals saw a 30% increase in patients seeking treatment for respiratory issues over the past month. In some areas, visibility in the streets was less than 100 meters, causing landmarks and skyscrapers to disappear behind the curtain of fog.

The U.S. embassy Twitter account monitors PM2.5, a fine particle pollution of less than 2.5 micrometers in diameter, and posted an hourly high of 526 micrograms per cubic meter, which is more than 20 times higher than the maxim set by World Health Organization safety levels. Even the figure reported by the Beijing city government (which consistently reports levels lower than those reported by @BeijingAir) for the same hour block was 433 micrograms per cubic meter, still considered highly dangerous by the WHO. A poll created by Chinese real estate mogul Pan Shiyi calling for a Chinese Clean Air Act to deal with some of these issues and prevent the situation from worsening even further received over 32,000 affirmative votes in under 10 hours.

Second Term Preview of Environmental Regulation

Photo by Carl Chapman, some rights reserved

In the next four years, the Obama administration will make its mark on energy and environmental laws, working through pending legislation and proposed regulation as well as considering further reforms in response to environmental and industry lobbying.

A Marten Law memo has the rundown on anticipated changes to energy and environmental laws. Obama’s “all of the above” energy strategy, well chronicled at the Green Mien, is likely to continue. Federal renewable energy programs have seen opposition recently, and the outcome of the pending battle of the wind energy production tax credit will be an early test of the Obama Administration’s policy. Either way, renewable energy growth is likely to be lower in the coming years as production of natural gas continues to increase.

Fracking, too, has contributed to the domestic supply surge, while prompting calls for closer regulatory scrutiny. In response, the Obama Administration has proposed regulation of fracking on federal lands, and EPA is studying the potential impact of horizontal drilling on drinking water.

Energy infrastructure questions are on the agenda, too. Most importantly, the Administration will decide whether to authorize a re-routed Keystone XL pipeline bringing oil from Canadian tar sands to the Gulf of Mexico. Proposals for coal and natural gas export terminals are making their way through state and federal agencies as well.

In the news this week is Obama’s stance on climate change, a topic he avoided during his election campaign. A second term will ensure that EPA will proceed with its plan to regulate greenhouse gas emissions under existing provisions of the Clean Air Act, a plan upheld last summer by the D.C. Circuit Court of Appeals. In addition, EPA is expected to release standards for greenhouse gas emission from power plants and refineries. Several challenges to air quality rules are still pending, though, notably the Cross-State Air Pollution Rule and the Boiler MACT rule affecting industrial facilities.

At a press conference Wednesday, President Obama responded to a reporter’s question about his specific plans to address climate change. You should read his entire response here, but he made himself clear that ignoring jobs and growth simply to address climate change is not on his agenda: “I won’t go for that.” An agenda for job growth that includes making a dent in climate change, however, is “something the American people would support.”

In addition to air and energy policy previews, Marten Law’s memo has summaries of expected policy developments in natural resources and hazardous waste regulation.

US Appeals Court Protects EPA’s Jurisdiction Over Greenhouse Gases

Yesterday, the US Court of Appeals for the District of Columbia ruled unanimously in favor of the EPA, confirming that the agency does indeed have authority under the Clear Air Act to regulate air pollution by setting strict limits on carbon emissions from main offenders like power plants and oil refineries. Specifically, the decision gave the EPA jurisdiction over regulation six greenhouse gases by implementing a carbon credit system. But the case, The Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, has a bit of a history so first, a quick primer.

The US Supreme Court first ruled in favor of EPA carbon and methane regulation in Massachusetts v. EPA on April 2, 2007, giving the agency free reign to declare when emissions became dangerous. In 2009, such a declaration was made in the form of an endangerment finding, which led to tightening of regulations in large-scale industries. Last year, the Supreme Court unanimously reaffirmed its Massachusetts ruling in American Electic Power v. Connecticut, a case which we covered in June 2011.

So it may come as little surprise, then, that the most recent challenge to the EPA from the Coalition for Responsible Regulation, a group made up of representatives from coal, oil, and steel industries, organizations opposed to climate science, and tea-party politicians (including former Presidential candidates Rick Perry and Michelle Bachmann), was also unanimously shut down. The court opinion affirms the endangerment finding, as well as the clean car standards approved by Obama in 2009 which limit carbon pollution for vehicles and the timing and tailoring rules for new power plants with large industrial emitters. The coalition emerged from a three-part consolidation effort of anti-EPA lawsuits in February of this year. These challengers argue that the EPA carbon rules are unlawful and immensely damaging to U.S. industry and thus the economy. House Energy and Commerce Committee chairman Fred Upton (R-Mich) said of the ruling:

We cannot afford the EPA’s continued expansion of red tape that is slowing economic growth and threatening to entangle millions of small businesses.”

However, proponents of climate science are singing a different tune. EPA Administrator Lisa Jackson said here agency was merely taking “reasonable actions to address the very real threat of climate change,” while former-EPA administrator Carol Brown stated:

The Court’s decision should put an end, once and for all, to any questions about the EPA’s legal authority to protect us from industrial carbon pollution through the Clean Air Act. The decision is a devastating blow to those who challenge the overwhelming scientific evidence of climate change and deny its impact on public health and welfare.”

Check out further insight from the JECE Energy blog, and related Law Firm memos from Morrison Foerster and Stoel Rives.

U.S. Court Upholds EPA’s GHG Rules

On Tuesday, June 26, the U.S. Court of Appeals for the D.C. Circuit released an opinion in Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, upholding the agency’s rules regulating greenhouse gases.

From the opinion:

Following the Supreme Court’s decision in
Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified
that greenhouse gases are an “air pollutant” subject to regulation
under the Clean Air Act (CAA)—the Environmental Protection
Agency promulgated a series of greenhouse gas-related rules.
First, EPA issued an Endangerment Finding, in which it
determined that greenhouse gases may “reasonably be
anticipated to endanger public health or welfare.” See 42 U.S.C.
§ 7521(a)(1). Next, it issued the Tailpipe Rule, which set
emission standards for cars and light trucks. Finally, EPA
determined that the CAA requires major stationary sources of
greenhouse gases to obtain construction and operating permits.
But because immediate regulation of all such sources would
result in overwhelming permitting burdens on permitting
authorities and sources, EPA issued the Timing and Tailoring
Rules, in which it determined that only the largest stationary
sources would initially be subject to permitting requirements.
Petitioners, various states and industry groups, challenge all
these rules, arguing that they are based on improper
constructions of the CAA and are otherwise arbitrary and
capricious. But for the reasons set forth below, we conclude: 1)
the Endangerment Finding and Tailpipe Rule are neither
arbitrary nor capricious; 2) EPA’s interpretation of the
governing CAA provisions is unambiguously correct; and 3) no
petitioner has standing to challenge the Timing and Tailoring
Rules. We thus dismiss for lack of jurisdiction all petitions for
review of the Timing and Tailoring Rules, and deny the
remainder of the petitions.

Read more from Reuters.

War on Diesel

Diesel has gotten more than its share of coverage in environmental news recently. Fans of diesel might have liked last week’s post about a CA district court’s decision holding that RCRA does not apply to diesel exhaust, because the exhaust is neither a solid nor hazardous waste. But things aren’t looking as good for diesel this week:

  • On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held that the EPA “lacked good cause for not providing formal notice-and-comment rulemaking” in a suit filed against the EPA for promulgating an interim final rule on nitrogen oxide emissions. Specifically, the interim final rule basically permitted some manufacturers of heavy-duty diesel engines to pay penalties rather than, well, comply with the actual final rule, which required a 95 percent reduction in the emissions of nitrogen oxide from heavy-duty diesel engines. Before I read the decision, I’d expected the petitioners to be angry environmentalists, but I guess it’s not surprising that they were actually manufacturers of diesel engines who had spent hundreds of millions of dollars already to bring their engines into compliance. The court vacated the interim final rule. For more details, read this post on the Jenner & Block Corporate Environmental Lawyer Blog.
  • And it was a well-timed decision: on the same day, WHO’s International Agency for Research on Cancer officially classified diesel engine exhaust as “carcinogenic to humans,” based on “sufficient” evidence that exposure to the exhaust is associated with an increased risk for lung cancer. This is a more dire outcome than diesel exhaust’s last evaluation – in 1988 it was classified only as “probably carcinogenic to humans.” Read the full story on the Atlanta Journal-Constitution.

CA Court: RCRA Does Not Apply to Diesel Exhaust

Photo by Paul Hamilton. Some rights reserved.

RCRA (Resource Conservation and Recovery Act, or, less fondly, Really Confusing Regulations Act) governs the management of hazardous waste in order to prevent threats to human health and the environment. It was RCRA that plaintiffs in a recent case against Union Pacific Corp., et al., hoped would aid them in curbing the amount of “deadly diesel particulate pollution” that is “spewing from sixteen railyards located throughout California.”

The complaint in Center for Community Action and Environmental Justice et al v. Union Pacific Corporation et al was filed in October 2011. The plaintiffs (Center for Community Action and Environmental Justice, East Yard Communities for Environmental Justice and Natural Resources Defense Council Inc) argued that because diesel particulate matter (DPM) is comprised of solid particles, many of which are on the RCRA list of hazardous substances (such as arsenic and mercury compounds), that DPM is both a solid waste and a hazardous waste within the meaning of RCRA (42 U.S.C. § 6903(5), (27)) , and that DPM should be regulated as such. If this categorization passed muster with the court, the “creators” of DPM (the defendants) would be forced to follow RCRA regulations in handling, storing, treating, and disposing of the DPM, as well as limiting or controlling the amount of DPM generated.

The court, however, was not swayed. According to a Morrison Foerster, the court held that RCRA does not apply to the diesel exhaust “both because DPM is not a ‘solid or hazardous waste’ under RCRA and also because Congress intended the Clean Air Act (‘CAA’) to regulate diesel emissions comprehensively.” For more details, check out the recent MoFo Client Alert on the decision.

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