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Grace C. Hearn

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On January 19, 2021, in a 2-1 decision, the D.C. Circuit Court vacated the Trump administration’s 2019 Affordable Clean Energy (ACE) Rule and remanded it to the U.S. Environmental Protection Agency (EPA). The decision offers a strong statement about EPA’s breadth of authority to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) and, if its position is upheld, clears the way for the Biden administration to regulate power plants.

The Affordable Clean Energy Rule

The EPA promulgated the ACE Rule in 2019 under the CAA, replacing the Obama administration’s 2015 Clean Power Plan (CPP). Both rules sought to reduce GHG emissions from the power sector; but where the CPP implemented broader industry-wide mechanisms, the ACE Rule limited reduction efforts to the actual source power plants.

The 2015 CPP offered “beyond the fenceline” tools for states to reduce emissions by replacing fossil fuels with renewable energy sources and participating in emissions credit-trading programs; however, in February 2016 the U.S. Supreme Court stayed the implementation of the CPP pending litigation in the D.C. Circuit. During the stay and subsequent freeze of litigation, the Trump administration rescinded the CPP and promulgated the ACE Rule.

In promulgating the ACE Rule, the Trump EPA took an alternative view of the CAA than the Obama EPA and reasoned that the CAA expressly limited the EPA’s power to only “at the source” emissions reduction options, such as heat rate improvement technologies. As a result, the Trump administration removed all of the CPP’s “beyond the fenceline” options and limited emissions restrictions to those applied directly to power plants.Continue Reading The fall of Trump’s Affordable Clean Energy Rule and the strengthened EPA authority to regulate greenhouse gases

On January 5, 2021, the U.S. Army Corps of Engineers (the Corps) released the final version of a rule revamping certain nationwide permits (NWPs) under the Clean Water Act (CWA). The CWA authorizes the Corps to issue general permits authorizing categories of activities that have minimal individual and cumulative adverse environmental effects. These permits remain in effect for no more than five years, at which point the Corps must renew the permits.

This rule reissues and modifies 12 nationwide permits (NWPs) and issues four new NWPs. Of these 16 NWPs, the most impactful changes are to NWP 12.Continue Reading U.S. Army Corps of Engineers revamps Clean Water Act Nationwide Permit 12

On August 13, 2020, the U.S. Environmental Protection Agency (EPA) issued two final rules—a Methane Policy Rule and an Inspection Rule —rolling back portions of its New Source Performance Standards (NSPS) for the oil and gas industry. In explaining these changes, EPA Administrator Andrew Wheeler stated that the EPA rescinded portions of the Methane Policy Rule because those portions were based on an impermissibly broad interpretation of the Clean Air Act (CAA).

Updated methane regulations rescind methane standards and ease emissions requirements

Under the new Methane Policy Rule, the EPA rescinded methane and volatile organic compound (VOC) emissions standards for new and modified oil and gas transmission and storage infrastructure, including methane limits for new and modified oil and gas production and processing equipment.

Under the Inspection Rule, the EPA relaxed requirements for oil and gas operators to monitor emissions leaks. This Rule excludes low production well sites (“where the total combined oil and natural gas production for the well site is at or below 15 barrels of oil equivalent per day”) from fugitive emissions monitoring, as long as operators maintain records to demonstrate well production remains at or below the requisite threshold. Additionally, all fugitive emissions monitoring may stop when all major production and processing equipment is removed from the well site.Continue Reading EPA rolls back methane regulations for oil and gas infrastructure

Earlier this month, the White House Council for Environmental Quality (CEQ) finalized its update of the governing regulations for the National Environmental Policy Act (NEPA) rule.  This marks the first comprehensive review of NEPA since its 1978 promulgation. Entitled, “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” it seeks…

On July 9, 2020, the Fifth Circuit held that the mechanical integrity requirements of the Occupational Safety and Health Administration (OSHA) process safety management (PSM) standard for highly hazardous chemicals applies to emergency stops that would only be activated after a release. The case—Sanderson Farms v. Occupational Safety and Health Review Commission (OSHRC)—centered on the application of the PSM standard’s mechanical integrity element, 29 C.F.R. § 1910.119(j), specifically (1) whether that element applies to emergency shutdown equipment, and (2) the requirements to inspect and test such equipment. Petitioner, Sanderson Farms, Inc. (Sanderson), argued that the mechanical integrity requirements did not apply to emergency stops because they only activate after a release and are therefore responding to another component’s mechanical failure.
Continue Reading Fifth Circuit upholds OSHA’s interpretation of PSM standard

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?Continue Reading ICYMI: June sees major U.S. Supreme Court environmental activity

In 2016, Congress enacted major reforms to the Toxic Substances Control Act (TSCA). These improvements included items such as: (1) a mandatory requirement for the U.S. Environmental Protection Agency to evaluate existing chemicals with clear and enforceable deadlines; (2) risk-based chemical assessments; (3) increased public transparency for chemical information; and (4) a consistent source of funding for the EPA to carry out its responsibilities under this statute.

Although the EPA has made progress toward these goals on demanding deadlines, it is still struggling to complete all of its required improvements on time. The agency has successfully promulgated a series of “framework rules” establishing the process for how the agency regulates chemicals; it has finalized guidelines detailing how companies may keep certain information confidential; and it continues to update the TSCA inventory.

All this headway aside, the EPA has announced that it will not meet the deadlines for three improvements: (1) amendments to the fee rule; (2) risk evaluations; and (3) scoping documents for future chemical evaluations. In the coming months, the EPA will push to finalize these updates. As a result, important developments in the TSCA program may take place this summer.Continue Reading TSCA Summer Watch List

This month’s notable U.S. Supreme Court (SCOTUS) actions involve what the Court declined to review rather than any actual decisions.

  • Declined to review: Fuel blenders exemption under the EPA’s RFS program

On May 18, 2020, SCOTUS declined to review the U.S. Environmental Protection Agency’s (EPA) policy that fuel blenders are not responsible for mixing biofuels into gasoline. This policy is part of the EPA’s renewable fuel standard (RFS) program, which requires an increasing amount of renewable fuels be blended into U.S. transportation fuels. This means the D.C. Circuit opinion (below) on the issue remains unchanged.Continue Reading ICYMI: Major May U.S. Supreme Court environmental decisions

On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (the AFL-CIO) filed a petition against the U.S. Occupational Safety and Health Administration (OSHA) demanding that the agency issue an emergency temporary standard (ETS) to address the COVID-19 pandemic within 30 days. The case is In re: Am. Fed’n of Labor…

A new EPA rule finalizes amendments to the definition of “small manufacturer” in accordance with the Toxic Substances Control Act (TSCA). Changes to the small manufacturer definition impact certain reporting and recordkeeping requirements established under TSCA. The final rule is effective 30 days after publication in the Federal Register.

The final rule, made public May 12, updates EPA’s 1984 definition of entities that must file production volume and other information under existing regulations, including the Chemical Data Reporting rule.Continue Reading EPA updates ‘small manufacturer’ definition for reporting and recordkeeping under TSCA section 8(a)