Category Archives: Regulation

More Than (You Thought) You Ever Wanted To Know About Waters Of The United States

Over the past few months, I worked with a number of colleagues from the American College of Environmental Lawyers to provide the Environmental Council of the States with a balanced review of the history and background of how the term “waters of the United States” rapanos-cartoonhas been defined and interpreted under the Clean Water Act. In announcing the release of the memorandum, Dick Pedersen, President of ECOS, thanked “those members of ACOEL who spent significant time and effort developing this comprehensive memorandum.”

To which I can only add, that’s… More

EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for Some Citizen Suits

This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at the time, that decision clearly had implications beyond the cement kiln rule.

Those implications were made more concrete this week when EPA issued a supplemental notice of proposed rulemaking in which it proposed to rescind its policy allowing affirmative defenses to penalties for excess emissions during startup, shutdown, or malfunction events. Moreover, EPA proposes to reject SSM affirmative defenses in existing SIPs.

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NPDES Permits Are Construed Narrowly Against the Permittee

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency.  This week, in Alaska Community Action on Toxics v. Aurora Energy Services, the 9th Circuit Court of Appeals treated the stormwater general permit in a similar manner, rejecting the defendants’ arguments that periodic discharges of coal from their coal-loading facility SewardCoalFacilitywere authorized under the stormwater general permit.

To the Court, this was a straightforward, plain meaning interpretation of… More

How Low Will They Go? A Lower Ozone NAAQS Begins to Have An Air of Inevitability

On Friday, EPA released its “Policy Assessment for the Review of the Ozone Ozone_Molecule_FormulaNational Ambient Air Quality Standards.” EPA staff concluded:

that it is appropriate in this review to consider a revised primary O3 standard level within the range of 70 ppb to 60 ppb. A standard set within this range would result in important improvements in public protection, compared to the current standard, and could reasonably be judged to provide an appropriate degree of public health protection.

As staff noted, the Clean Air Science Advisory Committee made the same recommendation…. More

EPA Refuses to Amend Its Backup Generator Rule: Demand Response Breathes Easier

Last Friday, EPA published notice that it would not be revising its regulations on backup generators in response to three petitions for reconsideration it had received after it promulgated its final rule in January 2013. The rule had sparked controversy, because EPA allowed backup generators to operate for up to 100 hours a year, though EPA did require use of ultra-low sulfur diesel fuel beginning in January 2015.

There were three major issues in the petitions. EPA’s responses addressed them as follows:

• The timing of the requirement to utilize ULSD. EPA rejected arguments that… More

You Can’t Estop the Government — Even When It Wants to Be Estopped

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.

In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal, California. Although section 165(c) of the Clean Air Act requires EPA to act on such applications within one year, EPA failed to do so.

Subsequently, and before… More

EPA Publishes Final 316(b) Rule: Flexibility for Generators Means Litigation By Environmental Groups

Last Friday, EPA finally published its § 316(b) rule in the Federal Register. As we noted in May, the rule is more significant for what it does not do – require closed cycle cooling – than for what it does.  impinged_herring_732

Indeed, the rule provides a lot of flexibility for generators. It allows several different options for compliance with the impingement requirements. The entrainment requirements, which apply to facilities using 125 million gallons of water per day, will be based on site-specific analyses.

Of course, this very flexibility has… More

It’s Really Difficult to Site a Highway in a Refuge

In an important decision last week, the 4th Circuit Court of Appeals made clear just how high the hurdles are in the way of building highways in wildlife refuges. The decision in Defenders of Wildlife v. North Carolina DOT sent the Federal Highway Administration and the North Carolina DOT back to the drawing board in their efforts to find a solution to transportation problems on Hatteras Island.  bonner-4

After a multi-year planning process that reviewed multiple options, FHWA and NCDOT together decided on a plan to replace the Bonner Bridge, which… More

More on the Reach of Sackett: Corps Jurisdictional Determinations Are Not Final Agency Action

Early last month, we noted that the decision in Luminant v. EPA suggested that the reach of the Supreme Court decision in Sackett is not unlimited. The Court of Appeals for the 5th Circuit agrees. In Belle Company v. Corps of Engineers, the Court ruled that a Corps Jurisdictional Determination, or JD, is not final agency action subject to judicial review.

That had always been the law, but the plaintiffs argued that Sackett changed the landscape. Not so, said the Court. The Court agreed that the JD was the “consummation of the Corps’s decisionmaking process.” However,… More

Who Gets to Review EPA Actions? The Court of Appeals? The District Court? (Hint: The Answer Is Not “Neither One”)

The general rule under the Clean Air Act is that any:

person may bring suit in district court against the EPA Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district court has jurisdiction “to order the Administrator to perform such act or duty,” as well as to “compel . . . agency action unreasonably delayed.” By contrast, “judicial review of final action by the EPA Administrator rests exclusively in the appellate courts.

The subject of the decision last Friday by the District Court for the District of Columbia in Sierra Club v. McCarthyMore

Is Selenium the Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based on Water Quality Criteria Exceedances

Earlier this week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:

discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].

Similarly, the West Virginia surface mine… More

EPA Wins Two Clean Water Cases in One Day: The Fourth Circuit Affirms a Narrow Construction of the Permit Shield Defense

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day, the 4th Circuit Court of Appeals affirmed a decision narrowly construing the CWA’s permit shield defense.

Southern Appalachian Mountain Stewards sued A&G Coal over discharges of selenium from A&G’s Kelly Branch Surface Mine in Virginia. The case was not really difficult and was only ever going to have one outcome.

According to the record, at the time of A&G’s NPDES permit… More

The D.C. Circuit Rejects Challenge to EPA’s Final Guidance on CWA Coal Mining Permits: EPA Action Has to Be Really, Really, Final to Be Appealable

On Friday, the D.C. Circuit reversed Judge Reggie Walton’s decision from 2012 and affirmed EPA’s authority to adopt the “Enhanced Coordination Process” governing coordination with the Army Corps of Engineers in the processing of Clean Water Act permits. The Court also rejected challenges to its 2012 Final Guidance document regarding appropriate conditions on such permits.

The decision on the Enhanced Coordination Process seems rather obvious. As the Court noted:

this kind of inter-agency consultation and coordination is commonplace and often desirable. Indeed, restricting such consultation and coordination would raise significant constitutional concerns.

***

Indeed, one of… More

Still Using Economic (and Safety) Arguments to Reduce Greenhouse Gas Emissions: Massassachusetts Enacts Gas Leak Legislation

As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to highlight the economic costs resulting from gas leaks. Of course, methane is a much more powerful greenhouse gas than CO2, with a global warming potential of 21.

Now Massachusetts – that leader in all matters progressive – has done something about it. As Governor Patrick announced earlier this week, Massachusetts has enacted H.4164, “An Act Relative to Natural Gas… More

The Reach of Sackett is Not Infinite: Regulated Facilities May Not Challenge EPA Notices of Violation

After the Supreme Court held in Sackett v. EPA that EPA must provide hearings to those to whom it issues unilateral administrative orders, the regulated community immediately began to wonder how broadly the ruling would sweep. It is clear that EPA’s order authority under similar statutory provisions – such as those in the Clean Air Act – is also subject to Sackett. However, what about seemingly less final actions, such as issuance of notices of violation?

Last week, the 5th Circuit Court of Appeals held, in Luminant v. EPA, that Sackett does not apply to the issuance… More

83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation of Otherwise Exempt Sources

The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.

To EPA and the court below, the main issue – EPA’s authority – was not difficult. PSD applies to “any regulated air pollutant.” Once EPA issued the tailpipe rule, GHGs became a regulated pollutant. Thus, EPA had not just discretion to regulate… More

More on EPA’s GHG Rule: I Am NOT Going To Set Odds on Whether the Rule Would Survive Judicial Review

Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very) slightly broader look at potential legal challenges.

First, I still think that the most obvious potential plaintiffs, owners of coal-fired power plants, might indeed have standing issues in challenging a rule which maximizes the options for attaining reductions in GHG emissions. After Massachusetts v. EPA, EPA pretty clearly has authority to regulate GHG emissions from power plants. If EPA did that… More

EPA’s GHG Rule: The Really Big Picture View

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post on some aspects of it in coming days, if I can figure out a blog-efficient way to do so. Today, I’d like to focus on the big picture.

What do we know about EPA regulation of GHG?

• The Supreme Court has told EPA that greenhouse gases are, collectively, a pollutant under the Clean Air Act. That’s a… More

When Does the Sixth Circuit Set EPA Rules for the Entire Country? When EPA Regulations Require National Uniformity

In a fascinating decision issued today, the D.C. Circuit Court of Appeals struck down EPA’s Summit Directive. The Summit Directive – sounds ominous – was issued in response to the 2012 decision in Summit Petroleum Corp. v. EPA, in which the Sixth Circuit Court of Appeals ruled that EPA could not consider two facilities as “adjacent” for Title V and NSR permitting purposes unless they are, in fact, adjacent. EPA had previously interpreted facilities as adjacent based in part on whether the facilities, even if not physically adjacent, were “functionally interrelated.”

Following the decision in Summit, EPA determined… More

The RGGI Annual Report for 2013: Do We Finally Have a Real Market for Allowances?

Potomac Economics has released the Annual Report on the Market for RGGI CO2 Allowances for 2013. Based on the data in the report, it appears that a functioning market for CO2 allowances is finally developing. What’s the evidence?

• The share of allowances held by investors as opposed to compliance entities increased from 6% to 24% over the course of 2013.

• The volume of allowance futures trading rose from 2 million in 2012 to 76 million in 2013.

• The number of participants in the RGGI auctions increased by an average of… More

EPA Promulgates Final Cooling Water Intake Rule: Much Ado About Not Very Much?

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more significant for what it does not do than for what it does.

What does it do?

• Facilities that withdraw at least 2MGD must reduce impingement based on a finding that use of modified traveling screens with fish returns constitutes the best technology available (BTA). However, the rule also authorizes regulated facilities to use six alternative compliance options – up from just one one… More

The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution

The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents, the decision does not surprise me. EPA pretty much did what it was told when the Bush era CAIR rule was struck down. Moreover, EPA crafted a rule that seems to me fully within its discretion under the Clean Air Act and which, in fact, took cost into account as much as allowed under the CAA.

There were two issues on appeal…. More

Cement Kiln Operators Better Hope that Their Control Technology Works: D.C. Circuit Vacates EPA’s Affirmative Defense Rule

Last week was hazardous air pollutant regulation week at the D.C. Circuit Court of Appeals. First, as we reported, the Court affirmed EPA’s mercury air toxics rule, determining that EPA need not take cost into account in promulgating rules for electric generating units (EGUs) under § 112(n) of the CAA. On Friday, the Court affirmed the substance of EPA’s revised hazardous air pollutant rules for cement kilns, but vacated EPA’s affirmative defense based on unavoidable malfunctions. The decision is notable for two issues that will be of concern even outside the universe of cement kiln operators.

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D.C. Circuit Affirms EPA’s Utility Air Toxics Rule: An “Appropriate” Rule Need Not Be Justified By Cost-Benefit Analysis

Yesterday, the D.C. Circuit Court of Appeals affirmed EPA’s rule setting limits for emissions of mercury and other air toxics from fossil-fuel-fired electric steam generating units.  The focus of the decision – and the issue on which Judge Kavanaugh dissented – was whether EPA was required to consider the costs that would be imposed by the rule.  EPA said no and the majority agreed.

Section 112(n) of the Clean Air Act required EPA to perform a study of the health hazards related to hazardous emissions from EGUs prior to regulating them.  How was EPA to utilize the results of… More

Enforcement of Municipal Stormwater Ordinances Is Tricky Business: Failure to Enforce an Ordinance Required Under a Permit Is Not a Violation of the Permit

Stormwater pollution has become an increasingly important problem.  Part of the difficulty in solving it is that it’s not obvious who should be responsible.  Should cash-strapped municipalities be on the hook or should it be developers and others who own and maintain large properties with acres of impermeable surfaces?  Often, the answer given by EPA and state regulators is that municipal separate stormwater sewer systems, or MS4s are responsible, but they have the authority – and sometimes the obligation – to impose appropriate requirements on property owners.

That was the case in Citizens for Pennsylvania’s Future v. Pittsburgh Water… More

ExxonMobil Admits Climate Change Is Real. It also Imposes an Internal Cost on Carbon. Still Not Enough to Get Any Love From the Greens (Interesting Reading, Though)

Last week, in response to shareholder requests that it disclose information regarding how climate change might affect it in the future, ExxonMobil released two reports, one titled Energy and Climate, and one titled Energy and Carbon – Managing the Risks.  They actually make fascinating reading and seem to represent a new tack by ExxonMobil in its battle with those seeking aggressive action on climate change.

The reports do not deny the reality of climate change.  Indeed, the reports acknowledge climate change, acknowledge the need for both mitigation and adaptation, acknowledge a need to reduce fossil fuel use (at… More

Dispatches From the “Sue and Settle” Front: Trade Groups Do Not Have Standing to Challenge Settlements Regarding ESA Listing Procedures

Last week, a federal court, for the fourth time, found that property owners’ groups do not have standing to challenge a settlement between the administration and conservation groups under which the administration agreed to make listing decisions under the Endangered Species Act on more the 250 candidate species by 2016.  Judge Emmet Sullivan, who entered the original settlements, ruled that settlements imposing procedural deadlines on the Fish and Wildlife Service did not cause any redressable injuries to the plaintiffs.

The case has been something of a poster child for those complaining about so-called “sue and settle” agreements between… More

Definitely a Victory For Regulations Over Guidance: EPA Issues Proposed Rule Defining Waters of The United States

Tthe Supreme Court issued its decision in Rapanos almost 8 years ago and EPA has been struggling ever since to figure out what “waters of the United States” are within the meaning of the Clean Water Act.  After several failed attempts at guidance, EPA finally acknowledged that this issue is too important and too contentious for guidance – and that it merits formal notice and comment regulation.  On March 25, EPA sent a proposed rule for publication in the Federal Register.  It’s only 370 pages.  Sounds like guidance to me.

Although one might have thought that defining waters… More

Coal Companies, Don’t Look Behind; EPA May Be Gaining on You

As the lawyers among our readers know, the denial of a certiorari petition does not establish precedent.  However, that doesn’t make it unimportant.  Yesterday, the Supreme Court denied cert. in Mingo Logan Coal Co. v. EPA.  The cert. denial leaves in place the decision by the D.C. Circuit Court of Appeals holding that EPA has authority retroactively to withdraw a site specification for a Clean Water Act § 404 permit issued by the Army Corps of Engineers.  As Hal Quinn, President and CEO of the National Mining Association said in response, this leaves a “cloud of uncertainty”… More

2 and 1/2 Strikes and the NGOs May Be Out: EPA Refuses to Exercise Residual Designation Authority

Stormwater regulation is a thorny issue.  There is widespread agreement that nutrient run-off can be a significant problem, but little agreement on what to do about it, since stormwater infrastructure is normally managed by cash-strapped municipalities, but the most cost-effective approach will often not be to require thousands of individual properties owners to make large separate capital expenditures (though best management practices can certainly often provide significant benefit).

The NRDC, American Rivers, and CLF sought last year to cut this Gordian knot by petitioning EPA (at least in Regions 1, 3, and 9) to exercise its “residual designation authority”… More

How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.

The decision is massive (153… More

The Federal Tail Should Not Wag the Non-Federal Dog: The Sixth Circuit Concludes that the Corps’ Review of Mountaintop Removal Projects Is Limited

The Sixth Circuit Court of Appeals has ruled, in Kentuckians for the Commonwealth v. Army Corps of Engineers, that the scope of review by the Army Corps of Engineers of § 404 permit applications for fills related to mountaintop removal mining is limited to impacts directly related to the filling operations that require a permit, rather than the overall impacts of the mining project.

The case concerned a mountaintop removal project by Leeco in Perry County, Kentucky.  Prior to issuing a § 404 permit, the ACOE performed its NEPA review, issuing a Finding of No Significant Impact after completion… More

Yes, Virginia, NSR Really is a Preconstruction Permitting Program: Another NSR Enforcement Case Fails on Statute of Limitations Grounds

The trend of cases holding that the NSR provisions of the Clean Air Act constitute a one-time preconstruction review requirement got stronger earlier this month, as the decision in Sierra Club v. Oklahoma Gas and Electric Company dismissed claims by the Sierra Club related to facility modifications that occurred more than five years prior to entry of a tolling agreement between the parties.  The decision may not break any new ground, but it does help solidify some issues:

The statute of limitations begins to run when construction commences (“the last possible moment at which a preconstruction violation occurs is… More

Opacity Still Matters: Court of Appeals Affirms EPA’s NSPS for Particulate Matter

Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units.  The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations.  It is also a useful reminder of the extent of deference to EPA in an ordinary case.

First, the procedural issues.  Both petitioners, UARG and the State of Texas, filed petitions for reconsideration of EPA’s rule.  Indeed, perhaps the most important substantive question, whether EPA… More

NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference

Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.”  At the same time, however, the 6th Circuit made clear that EPA may not “second-guess” the proponent’s projections and that the regulatory scheme does not anticipate “prior approval” by EPA.

On Monday, we learned at least… More

I Thought Redeveloping Brownfields Was a Good Idea: Apparently the Boston Globe Hasn’t Gotten the Message

In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers.  The article is so wrong and the concerns are so misplaced that some response is necessary.

First, we expect MassDEP to regulate in the face of uncertainty.  That means that MassDEP must set cleanup standards without perfect knowledge.  As a result, most people – and certainly the environmentalists complaining about the regulatory changes – would expect MassDEP to err on the… More

More Than Five Years Later, the Bush Administration Is Still Losing Environmental Cases

I previously noted that the record of the Bush administration in defending its rulemaking decisions was dangerously near the Mendoza Line.  Indeed, even four years after Bush left office, it was continuing to lose decisions.  Now, we can say that the record has extended to five years.  Last week, in National Parks Conservation Association v. Jewell, the United States District Court for the District of Columbia vacated the 2008 rule issued by the Office of Surface Mining Reclamation and Enforcement, which had itself revised the 1983 stream buffer zone rule.

The ground for the vacatur was… More

EPA May Rely — In Part — on Projects Funded Under the Energy Policy Act to Justify the Greenhouse Gas NSPS. That’s Its Story and It’s Sticking To It

As those following EPA’s efforts to promulgate NSPS for greenhouse gas emissions from new fossil fuel-fired electric generating plants know, EPA has come under fire for basing its proposal on demonstrations of feasibility at projects that have received federal funding or tax credits under the Energy Policy Act of 2005.  Apparently, EPA is sufficiently concerned that they have prepared a Notice of Data Availability to be published in the Federal Register.  The NODA explains why the rule would not violate the Energy Policy Act.

In short (but explained at greater length in its accompanying Technical Support Document):

EPA’s… More

Cooperative Federalism Is Even Messier Than We Thought: 21 States Oppose the Chesapeake Bay TMDL

Last fall, the District Court for the Middle District of Pennsylvania affirmed EPA’s TMDL for the Chesapeake Bay.  As I noted at the time, Judge Rambo pointed to the sometimes “messy and cumbersome” nature of cooperative federalism in affirming the TMDL, stating that:

It is unavoidable that states and the federal government will occasionally disagree. EPA worked with the states to ensure that the proposed allocations were sufficient to achieve water quality standards.  Complete unanimity between the states and EPA in resolving all the complex issues involved here is likely impossible. Disagreements between the states and the federal… More

EPA Inches Closer to a More Stringent Ozone Standard: When Will It Actually See the Light of Day?

On Monday, EPA released its second external review draft of an updated Policy Assessment on the national ambient air quality standard for ozone.  It also released updated draft risk and exposure assessments.  To no one’s surprise, the new drafts confirm support for lowering the ozone NAAQS from 75 ppb to a range of 60 ppb to 70 ppb.

Why is this not a surprise?  Because, as I noted some time ago, the prior draft policy assessment also supported an NAAQS in the range of 60 ppb to 70 ppb.  Moreover, the Clean Air Science Advisory Committee weighed… More

Cape Wind Survives a Legal Challenge to FAA Approval: Is the Opposition Strategy to Play Whac-A-Mole?

On Wednesday, the Court of Appeals rejected a challenge by the Town of Barnstable to the FAA’s “no hazard” determination for Cape Wind.  As background, the same court had determined in 2010 that a prior no hazard determination by the FAA had not been adequately supported.  This time, the FAA did better, in part because the facts on the ground were better.  One significant concern in 2010 had been the potential impact of the turbines on the radar system at Otis Airfield.  However, that concern was largely addressed in the interim by the addition of a digital processor to… More

Massachusetts Issues Draft SREC II Regulations: Headed Toward 1.6GW of Solar By 2020?

Last year, Governor Patrick announced a goal of 1.6GW of solar electricity in Massachusetts by 2020; a goal that requires more than 1.2GW of new solar in the next six years.  The Massachusetts Department of Energy Resources has now issued draft regulations for its SREC II program.  The regulations are too complicated to summarize in a blog post, but you can read the details in our client alert.

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One More Update on the GHG NSPS Rule: EPA Has Improved Its Odds of Surviving Judicial Review, But I’m Still, Still, Skeptical

When EPA’s NSPS Rule for GHGs was published in the Federal Register last week, I noted that the rule might be on shaky ground, because an EPA Science Advisory Board work group had questioned the basis for EPA’s decision that carbon capture and storage is feasible technology.  Now it turns out that EPA has provided the work group with some additional information and the work group issued a memorandum last week stating that further review by the SAB is not required.  The work group concluded that “the agency is using the best available science and has conducted… More

EPA’s Proposed NSPS Rule for GHGs Is Finally Published in the Federal Register; I’m Still Skeptical

EPA’s Proposed New Source Performance Standards for greenhouse gas emissions from new sources was finally published in the Federal Register on Wednesday.  At least fundamentally, it seems unchanged from the proposal released last September.  It is still based on the conclusion that carbon capture and storage is feasible and represents BSER – the best system of emission reduction – for fossil fuel-fired electric steam generating units.

Really?  Does anyone other than EPA think CCS is feasible, at least at this point?  After the September release of the proposal, an EPA Scientific Advisory Board work group stated that:

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Is Renewable Energy At Parity With Fossil Fuels? Not Quite, But Certainly Closer

According to ClimateWire on Tuesday, a Minnesota state administrative law Judge’s recommendation to the state Public Utility Commission may be the first time that a solar project has been declared cost-competitive against natural gas in an open bidding situation.  That might be a little bit hyperbolic, given that Xcel Energy, which would be purchasing the power, has an obligation to significantly increase its solar portfolio and the decision recognized the economic value of the solar renewable energy credits that the recommended winner, Geronimo Energy, would produce.  Nonetheless, if affirmed, it will be an important decision and is certainly… More

ASTM 1527-05 Is Dead (Almost). Long Live ASTM 1527-13

For those of you who were skiing or snorkeling (snorkeling in my case) and missed it, on December 30, EPA announced a direct final rule incorporating the new ASTM 1527-13 standard for site assessments into its all appropriate inquiries rule.  Following ASTM’s release of the new standard, EPA’s action was expected, but remains important.

The biggest issue here is what EPA will do regarding the prior standard, ASTM 1527-05.  The answer for now is nothing; use of ASTM 1527-05 remains valid.  However, the new rule states that EPA “recommends” use of ASTM 1527-13.  EPA also stated that it… More

Citizens Are Not Harmed By the Concept of Pollution Trading: A Challenge to the Chesapeake Bay TMDL Is Dismissed

On December 13, the District Court for the District of Columbia dismissed plaintiffs’ challenge in Food and Water Watch v. EPA to the Chesapeake Bay TMDL’s discussion of pollution trading and offsets.  As I had previously noted, the TMDL itself already survived judicial challenge.

In this case, plaintiffs alleged that they would be harmed by trading of effluent discharge rights, because such trading would create “hotspots” that would damage their enjoyment of the water bodies where the elevated discharges would occur.

Judge Contreras was having none of it.  First, he found that the plaintiffs did not have… More

RGGI: the Hot New Investment Tip?

In last week’s auction held by the Regional Greenhouse Gas Initiative (RGGI), not only did the allowances sell at $3 — the highest clearing price in four years, other than the June auction’s $3.21 — but a majority of the allowances sold to investors, rather than the large generators of electricity whose carbon dioxide emissions are regulated under RGGI.  Fifty-seven percent of the allowances were bought by commodities firms, traders, and other third parties, marking the first time in RGGI history that an auction garnered such interest and participation from these outside entities. By comparison, 81% of the allowances… More

What Do Midwestern States Have In Common With Groucho Marx? Ask Them Whether They Want to Be Part of the Ozone Transport Region

As the Supreme Court gets ready to consider the validity of EPA’s Cross-State Air Pollution Rule, some of the Northeastern and Mid-Atlantic states are taking another tack to address at least part of the air pollution transport issue.  They have petitioned EPA under § 176A of the Clean Air Act to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia to the Ozone Transport Region established under § 184 of the CAA.

As the Technical Support Document submitted with the Petition indicates, the OTR states (minus their members with Republican governors) have largely… More

Just a Hiccup or a Major Obstacle? EPA Science Advisory Board Work Group Recommends that the SAB Review the Science Behind EPA’s Proposed NSPS For Greenhouse Gases

I have posted numerous times in recent years on the importance of the views of EPA’s own science advisors in judicial determinations whether EPA regulatory actions are arbitrary and capricious.  With few exceptions, courts have affirmed EPA when the regulations were supported by EPA’s science advisors, and struck down the regulations when not supported by those advisors.

Now comes word that a work group of EPA’s Science Advisory Board has recommended that the SAB review the science supporting EPA’s proposed New Source Performance Standards for GHG emissions from electric generating units.  In proposing the rule, EPA stated that… More

Man Bites Dog: DOE Issues Electric Motor Efficiency Standards; Everyone Applauds

On November 25, the world was stunned as DOE proposed new energy efficiency standards for electric motors, and no one complained.  The standards will apply to motors from 1 to 500 horsepower and will cost roughly $500 million annually over the expected 30-year life of the rule.  However, they are also expected to save approximately one trillion kilowatt-hours of electricity over that period.  That’s $23 billion in energy costs and 400 million tons of CO2.

What did the relevant trade group, the National Electrical Manufacturers Association, have to say about the rule?

The DOE’s proposed rule on electric… More

Waters of the United States: Definitely a Regulation, Not Guidance

Last week, what appears to be a draft (so long that it is in two separate parts) of EPA’s proposed rule defining “waters of the United States” was widely circulated.  Part of what I love about this story is that it is uncertain whether this is in fact the draft rule that EPA sent to OMB to review.  On one hand, it has many of the hallmarks of an EPA proposed rule.  However, there are some aspects that do read somewhat oddly, particularly the level of informality in the text.  According to the Daily Environment Report on… More

Hoist on Its Own Petard: The Ninth Circuit Reverses EPA’s Approval of Nanosilver Pesticides in Textiles

Last week, the 9th Circuit Court of Appeals remanded EPA’s approval of two nanosilver pesticides for use in textiles.  The case, NRDC v. EPA, is a fascinating application of the issue of “how safe is safe” and, in particular, how much conservatism must be applied to risk estimates when there is significant uncertainty in the analysis.

EPA sets the acceptable exposure to pesticides under FIFRA by determining the risk and then addressing uncertainties.  In this case, EPA had to account for three different sources of uncertainty:  interspecies uncertainty, since the underlying data was based on studies in animals other… More

Cape Cod TMDL Litigation; CLF Is Still In There Swinging

In September, I noted that Judge Mark Wolf had dismissed CLF’s law suit challenging EPA’s approval of the TMDLs for the Cape Cod embayments, ruling that CLF did not have standing.  CLF, as is its wont, is not going gentle into that good night.  It is still raging, raging, at EPA’s decision.  More to the point, it has refiled its complaint.

Presumably, this time around, CLF will be prepared with expert affidavits to address the shortcomings that Judge Wolf identified the last time around.  I’m still skeptical.  The first problem that Judge Wolf identified was that CLF… More

EPA’s Groundwater Remedy Completion Strategy: Making Cleanups More Efficient Or Just Increasing PRP Costs?

Last week, EPA released a draft Groundwater Remedy Completion Strategy.  The strategy is intended to provide:

a recommended step-wise plan and decision making process for evaluating remedy operation, progress and attainment of [remedial action objectives] using an updated conceptual site model, performance metrics and data derived from site-specific remedy evaluations.

I like to think that I am skeptical, not cynical.  Having worked on this stuff for 25 years, including some specific Superfund sites for most of that time, I’m skeptical that this means anything other than increased sampling and analytical costs and increased oversight costs, as my clients and… More

And You Thought Ending Flood Insurance Subsidies Would Be Difficult? Try Persuading a Politician to Support “Managed Coastal Retreat”

Earlier today, I posted about the political difficulties inherent in reforming flood insurance programs to avoid subsidizing those who choose to live in coastal areas subject to flooding.  When even Democratic legislators supportive of efforts to fight climate change oppose such reforms, you know you are in trouble.

Well, when it rains, it pours, as it were.  Just hours later comes news of the release of a report from the Columbia Law School Center for Climate Change Law on “Managed Coastal Retreat.”  The title pretty much tells it all.  The report discusses “rolling easements,” which expand to follow… More

The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit

Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements.  Well, in a decision issued on October 23, Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, asked himself the same question.  His answer was that EPA has no such authority.

In a theme recurring with greater and greater frequency… More

EPA Issues Revised Draft NSPS for Carbon Emissions From New Power Plants: It’s All About Technology Forcing

Last Friday, EPA reissued its draft NSPS addressing carbon emissions from new power plants.  It’s not actually that different from the prior proposal, which would have required all new fossil-fuel plants to meet a 1,000 lbs CO2/MWh standard.  The new proposal would require new large gas plants to meet the 1,000 lbs/MWh standard, but would relax the standard to 1,100 lbs/MWh for small gas plants and for coal plants.  Coal plants would, in the alternative, have the option of choosing a more stringent 1,000-1,050 lbs/MWh standard, averaged over seven years, if they want the flexibility to attain the more… More

Cooperative Federalism is “Messy and Cumbersome” — EPA’s Chesapeake Bay TMDL is Upheld

Last Friday, in American Farm Bureau Federation v. EPA, Judge Sylvia Rambo upheld EPA’s Chesapeake Bay chesapeake-bayTMDL.  As Judge Rambo noted in her conclusion, while the environmental problems associated with the Chesapeake Bay are massive and the issues complicated, her review was not that difficult.

Notwithstanding the expansive administrative record, and the complexity of the numerous issues implicated herein, the court’s scope of review in this case is relatively narrow. In accordance with the deferential standards applicable to a court’s review of an agency’s actions, this court must give EPA’s… More

Yes, Indeed, A Victory For Regulation Over Guidance

EPA’s used its blog today to announce that it and the Army Corps of Engineers have sent to OMB a draft rule clarifying the scope of jurisdiction under the Clean Water Act.  It appears that EPA has finally given up on its controversial efforts to solve the Rapanos problem through guidance.  As I noted previously, when an agency is still working on its quick and easy guidance (with regulations to follow) eight years after the court decision that made the guidance necessary, it’s probably time to acknowledge that there is no quick and easy, so you… More

Standing Matters, TMDL Version

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources, including septic systems, storm water systems, and waste water treatment facilities as non-point sources, rather than point sources.  Second, it alleged that the TMDLs failed to take into account the need for additional stringency due to… More

More on Old NSR Claims: Injunctive Relief Remains Available Against Original Owners Foolish Enough Not to Have Sold

As we noted last week and last month, the 3rd and 7th Circuits have ruled that violations of the obligation to undertake NSR review prior to implementing major modifications are not continuing, but are instead one-time violations occurring at the time the facilities undertake the modification.  These holdings meant that EPA could not pursue either former owners – because they no longer control the facilities – or current owners – because they never violated the statute and have no ongoing obligation to correct the former owner’s violation.

However, what happens if the property has not been… More

The Final Nail In the Coffin on EPA’s Enforcement Initiative Against Historic PSD Violations? The Third Circuit Agrees That PSD Violations Are Not Ongoing

Only last month, the 7th Circuit ruled that alleged violations of the Clean Air Act’s PSD requirements are not ongoing.  On Wednesday, in United States v. EME Homer Generation, the 3rd Circuit agreed.  Like the 7th Circuit, the 3rd Circuit did not really even view the question as difficult, finding the statute unambiguous and never reaching the second step of traditional Chevron analysis.

In short, the statute simply provides that:

[n]o major emitting facility . . . may be constructed [or modified] . . . unless” it meets various PSD requirements.…

Because this language does not say “constructed,… More

Integrated Assessment Models of the Social Cost of Carbon: False Precision Is More False Than Precise

For those who both believe in the reality of climate change and dream of a day when Congress might get past gridlock and address the issue, the critical question is how to price carbon emissions to reflect the external costs that the use of carbon imposes on society:  the “social cost of carbon”, or SCC.  Recently, attention has focused on efforts to develop “Integrated Assessment Models.”  The point of the IAMs is to integrate the scientific analysis of the changing climate with the economic costs that would result from varying degrees of climate change.

Robert Pindyck of MIT just prepared… More

The Atomic Energy Act Preempts Vermont’s Efforts To Close Vermont Yankee: Sometimes, Legislative Intent Is Just Too Clear To Ignore

Last week, in Entergy v. Shumlin, the 2nd Circuit Court of Appeals largely struck down Vermont’s efforts to close Vermont Yankee.  Although three separate Vermont statutes were at issue, and Entergy made both preemption and dormant Commerce Clause arguments, the essence of the case was simply that Vermont sought to require explicit legislative approval for Vermont Yankee’s continued operation.  Dismissing various proffered rationales for Vermont’s scheme, the Court concluded that the legislation was a poorly veiled attempt to end nuclear power generation in Vermont in response to public concerns about reactor safety and environmental issues.

At some level, the… More

More on the Permit Shield Defense: A Permittee Is — Gasp — Entitled to Rely on Regulations and Permits Issued by Delegated State Agencies

Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge.  Now we see the flip side.  In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges, without any NPDES permit at all, because the Wisconsin Department of Natural Resources had informed Flambeau Mining that, following mine closure, its stormwater discharges would be regulated through… More

What Is the Burden In Proving a Violation of a Stormwater Permit? If It Walks Like a Stormwater Discharge …

Those of us who do NPDES work know that enforcement, including citizen enforcement, against industrial point sources can often be all to straightforward.  The plaintiff marches into court with a pile of the defendant’s discharge monitoring reports and the liability phase may be over quickly.  Stormwater cases are different, as last week’s 9th Circuit decision in NRDC v. County of Los Angeles demonstrates.

The case had a number of twists and turns, including the seemingly de rigueur reversal of an earlier 9th Circuit decision by the Supreme Court.  As we noted at the time, the Supreme Court… More

Making Economic Arguments to Reduce GHG Releases: Senator Markey Releases a Report on Methane Leaks From Gas Distribution Lines

Two years ago, when I participated in a D.C. fly-in with a renewable energy group, we were instructed not to use the words “climate change.”  Instead, we were told to focus on “growing the clean energy economy.”  The push to frame the climate debate in economic terms continues.  This week, Senator Markey released a report asserting that, in Massachusetts alone in 2011, 69 billion cubic feet of natural gas was released from gas distribution lines.  The economic cost to consumers of this “lost gas” was put at between $650 million and $1.5 billion from 2000-2011.

Senator Markey is not… More

We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD Permits Even Absent a State Implementation Plan

Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act.  On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my point, by affirming EPA’s assertion of PSD permitting jurisdiction in Texas and Wyoming in the face of those states’ failure to prepare state implementation plans to incorporate permitting programs to implement EPA’s greenhouse gas rules under the PSD program.

The crux of the court’s holding was that § 165(a) of the CAA is self-executing, and requires sources newly… More

Cooperative Federalism? We Don’t Need No Stinkin Cooperative Federalism

Last Friday, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART, to address regional haze.  The Court also affirmed EPA’s promulgation of a federal implementation plan in place of the Oklahoma SIP.  While rehearsing the Clean Air Act’s “cooperative federalism” approach, the Court seemed more focused on deference to EPA’s technical assessment of the SIP than on any obligation by EPA to cooperate with states.

Given that the statute mandates that the EPA must ensure SIPs… More

Mississippi v. EPA: Support of the Clean Air Science Advisory Committee is Not Necessary to Affirm EPA’s NAAQS

On Tuesday, in Mississippi v. EPA, the Court of Appeals for the D.C. Circuit affirmed EPA’s 2008 NAAQS for ozone of 0.075 ppm.  However, it remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same 0.075 ppm level.  With respect to the primary standard, the Court gave short shrift to industry and red-state challenges that the standard was too stringent.  This is not surprising, since the Clean Air Science Advisory Committee had recommended a range of between 0.060 and 0.070 ppm.

The interesting part of the decision is the Court’s explanation of why it rejected… More

Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind State

On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the upwind state without waiting for the upwind state to complete its own SIP process, which would presumably result in appropriate controls to protect the downwind state.  This firm has represented GenOn (though not in this case), so I’m not going to get into the merits.  However, if the decision stands, it is important and… More

One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources.  EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be.  In fact, the record before the Court indicated that EPA believes that some biogenic sources may on net reduce GHG levels… More

The Seventh Circuit Cuts the Gordian Knot of NSR Interpretation: Preconstruction Review Cannot Lead to Continuing Violations

Earlier this week, in United States v. Midwest Generation, the 7th Circuit Court of Appeals affirmed dismissal of EPA’s NSR enforcement action against Commonwealth Edison.  Commonwealth Edison was the prior owner of the plants at issue and modified them at various times from 1994-1999 without obtaining PSD/NSR approvals before doing so.  Midwest Generation purchased the plants and continued to operate them.  In 2009, the United States sued both Commonwealth Edison and Midwest Generation.  In 2010, the District Court ruled that the government was not entitled to relief.  The government appealed, but in the meantime, Midwest Generation filed for… More

MassDEP Proposes Amendments to CO2 Budget Trading Regs to Implement RGGI Program Changes

On Friday, MassDEP released for public review and comment draft amendments to the CO2 Budget Trading Program regulations.   These amendments are designed to implement the changes to the Regional Greenhouse Gas Initiative (RGGI) agreed to by the RGGI states earlier this year as part of the 2012 Program Review.

As Seth previously discussed, the major change is a new cap that reduces the baseline budget of allowances for 2014 by 45%, with additional 2.5% reductions in the years 2015 through 2020.   The reduction is designed to address the significant excess supply… More

The President Issues His Climate Action Plan: Not Much Mention of Congress

President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act.  At a certain level, there is not much new here.  The mere existence of the Plan and the commitment to address climate issues is presumably the point.

The Plan does not provide many specifics.  The Memorandum does provide specifics regarding the issuance of new source performance standards.  EPA is directed to issue a new proposal by September 20, 2013.  That’s not a lot of time, so EPA… More

The Problem with the Supreme Court’s Regulatory Takings Jurisprudence? It Doesn’t Require a Taking

The Supreme Court ruled today, in Koontz v. St. Johns River Water Management District, that a property owner who is denied a land use permit on the ground that he refused to pay money to compensate for the harm to be caused by his proposed property use states a claim for a regulatory taking, unless the regulator can establish a “nexus” and “rough proportionality” between the exaction and the alleged harm requiring mitigation.

The facts in Koontz are muddled and, as the dissent points out, it is not obvious that Koontz should prevail on remand, even under the majority’s… More

The Supreme Court Agrees to Review the CSAPR Decision: Might EPA Avoid Version 3 of the Transport Rule?

The Supreme Court today granted certiorari in EPA v. EME Homer City, the challenge to EPA’s Cross-State Air Pollution Rule, or CSAPR.  The Court of Appeals for the District of Columbia had struck down the rule, over a fairly blistering dissent from Judge Judith Rogers.

Speculation over the reasons why the Supreme Court takes a case is often pointless, but I will say this:  Consideration of the history of EPA’s rulemaking leads to the conclusion that the rule should be upheld.

The D.C. Circuit struck down EPA’s original transport rule, known as CAIR, in 2008, in North… More

I Believe in Environmental Regulation, But….

As readers of this blog know, I believe in governmental environmental regulation.  We have a complicated world and it is not surprising that many activities, including those generating greenhouse gases, cause negative externalities.  At the same time, however, I have spent more than 25 years representing regulated entities in negotiations with government regulators and it is impossible to do such work without obtaining an appreciation for the very significant costs that bureaucracies impose.

With all due respect – cue the upcoming diss – to my many friends in government, the absence of market discipline or the ability to fire nonpolitical… More

Which Comes First, Innovation or Regulation?

Two seemingly unrelated stories in Wednesday’s trade press got me thinking – always dangerous – about the relationship between regulation and innovation.  The first story, from Daily Environment Report, noted that House Republicans have introduced a bill which would preclude EPA from promulgating CO2 performance standards for either new or existing fossil fuel power plants until carbon capture and storage systems have been determined to be technologically and economically viable.  I do realize that Republicans can introduce anything that they want and that this bill is unlikely to become law (though it does have two Democrat co-sponsors).

Nonetheless,… More

City of Arlington v. FCC: Did the Supreme Court Just Expand the Scope of Chevron Deference? No.

On Monday, in City of Arlington v. FCC, the Supreme Court made clear that agency interpretations of ambiguous statutes are entitled to deference even where they involve questions relating to the scope of an agency’s authority or jurisdiction.  Greenwire seems to think that this is a big deal and even speculated today that City of Arlington may have altered the decision in a case challenging EPA’s determination that it does not have authority under TSCA to regulate lead ammunition.

I’m skeptical.  The decision seems plainly right to me.  As both Justice Scalia’s majority opinion and Justice Breyer’s… More

A Nice, Straightforward Administrative Law Decision: HHS’s Decision to List Styrene as Reasonably Anticipated to Cause Cancer is Affirmed

Last week, in Styrene Information and Research Center v. Sebelius, Judge Reggie Walton of the District Court for the District of Columbia rejected challenges to the decision by HHS Secretary Kathleen Sebelius to list styrene as “reasonably anticipated” to be a carcinogen.  The case does not really break any new ground, but is a solidly written summary of several recurring issues in administrative law relating to review of agency decisions.

One important issue addressed by Judge Walton was how focused a comment on an agency decision must be to avoid arguments by the agency that the comment was waived… More

Boston Joins the Building Disclosure Bandwagon: Ordinance Will Require Reporting in 2014

On May 8, the Boston City Council approved an ordinance requiring building owners to report annual energy and water use.  The final ordinance is slightly different from the one about which we posted in February.  Highlights include the following:

Building owners subject to the ordinance will have to report on May 15 of each year:

The previous calendar year’s energy and water use of each building and other building characteristics necessary to evaluate absolute and relative energy use intensity.

Non-residential buildings of at least 50,000 square feet would be required to report beginning in 2014.  Non-residential buildings… More

Massachusetts Releases Its Revised Solid Waste Master Plan: Are We Really on a Pathway to Zero Waste?

On Tuesday, MassDEP announced release of its updated Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  The Plan’s most significant discussion relates to the state of the solid waste market and the Plan’s goal for disposal reduction.  The Plan announces a goal of reducing solid waste disposal by 30% from 2008 to 2020, from 6,550,000 tons to 4,550,000 tons.  However, the Plan acknowledges that, even if that ambitious goal is met, there will still be a shortfall of 700,000 tons in solid waste handling capacity in Massachusetts.

This is where the Plan’s controversial modification of the existing… More

Surprise, Surprise, Surprise: An Agency Cannot Revise Regulations In a Consent Decree

In a decision that should not have come as a surprise to anyone, the 9th Circuit Court of Appeals ruled on Thursday, in Conservation Northwest v. Sherman, that the Bureau of Land Management and other agencies implementing the Northwest Forest Plan could not amend the NFP without complying with the procedural requirements of the Federal Land Policy Management Act.  The rationale of the decision should apply far more broadly than just the FLPMA, however.  It should apply to any action by any agency purporting to amend agency regulations that would otherwise be subject to procedural requirements, such as notice-and-comment… More

When is the Meaning of a Statute Sufficiently Plain? The D.C. Circuit Restores EPA Authority to Withdraw Approval of Section 404 Permits

In a decision on Tuesday that must have sent shivers down the spine of every coal company executive, the D.C. Circuit Court of Appeals restored EPA’s authority to withdraw the specification of streams for the disposal of mountaintop mining wastes spruce mine– years after the Army Corps had issued the permit containing the specification.  Indeed, Daily Environment Report quoted National Mining Association CEO Hal Quinn as saying that the decision, in Mingo Logan Coal Company v. USEPA

has pulled the regulatory rug out from under the feet of U.S…. More

Coming to a Steam Electric Generating Plant Near You in May 2014 — New Effluent Limitation Guidelines

Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982.  The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014.

The proposed rule actually sets out four different regulatory options, and they are sufficiently complicated that EPA’s Fact Sheet on the proposal does not even attempt to summarize them.  For that reason, I provide here the Executive Summary of the proposed rule, which does summarize the… More

CZM Proposes Regulations to Implement Ocean Management Plan and Update Federal Consistency Review Program

The Massachusetts Office of Coastal Zone Management (CZM) recently released for public review and comment draft regulations designed to update federal consistency review requirements and implement the state’s Ocean Management Plan.

Governor Patrick signed the Oceans Act on May 28, 2008, requiring the Secretary of EOEEA to develop a comprehensive ocean management plan.  The Massachusetts Ocean Management Plan was released on December 31, 2009.  CZM has now drafted its proposed Ocean Management Plan regulations, which would implement the Ocean Management Plan largely through MEPA and other existing permitting processes.  Key provisions of the regulations include the following:

Ocean... <a href=More

Equal Protection Claims Concerning Disparate Enforcement of Environmental Laws Remain an Uphill Battle

In 2000, in its 2-page per curiam opinion in Village of Willowbrook v. Olech, the Supreme Court gave hope to developers and property owners that the equal protection clause could be used to prevent local zoning and environmental officials from engaging in disparate treatment against disfavored residents.  The Court stated that one may bring an equal protection claim as a “class of one” where

the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.

Since Olech, however, the Courts of Appeal have been… More

Stop the Presses: Utility Poles in Place Are Not Point Sources; Neither Are They Solid Waste

As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act.  On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges.  As the Court concluded:

Utility poles simply are not “discernible, confined and discrete conveyances” that “channel and control” stormwater.

The Court further… More

EPA Proposes Revisions to the Construction and Development Effluent Guidelines: Time Again To Ask Whether EPA Will Get Any Credit For Being Flexible

Today, EPA formally proposed revisions to its effluent guidelines for stormwater discharges from construction and development point sources.  As we have previously noted, in response to concerns about the basis for EPA’s numeric turbidity standards, EPA had stayed the numeric standards.  It is now formally proposing to withdraw them.

EPA also responded to concerns that the rule contains certain exceptions where particular practices are infeasible, but does not define infeasibility.  The proposed definition is that:

Infeasible means not technologically possible, or not economically practicable and achievable in light of best industry practices.

EPA is taking comment on this… More

EPA Finalizes Revisions to the Utility MACT Rule For New Plants

On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”).  The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour.  The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable.  EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.

I think that the real impact of the change – almost none – is demonstrated by the statement from Scott… More

The Actual to Projected Future Actual Test: When Does EPA Get to Review Generators’ Projections?

On Thursday, in United States v. DTE Energy Company, the 6th Circuit Court of Appeals revived EPA’s enforcement action against DTE energy for alleged NSR violations at DTE’s Monroe Power Plant.  As the dissent notes, it may be a hollow victory. 

The facts trace a familiar NSR enforcement case trajectory.  In 2010, DTE commenced a $65 million maintenance project at Monroe, involving tubing, the economizer, and reheater piping, among other elements of plant equipment.  Under EPA’s NSR regulations, DTE had determined, once demand growth was excluded,… More

EPA Loses Another Battle in the War Over Guidance: The Eighth Circuit Vacates EPA Policies on Mixing Zones and Bypasses

On Monday, EPA lost another battle in the war over guidance.  In Iowa League of Cities v. EPA, the 8th Circuit Court of Appeals vacated two letters that EPA had sent to Senator Charles Grassley concerning biological mixing zones and bypass of secondary treatment units at POTWs (also referred to as “blending”, because the POTWs blend wastewater that has not be subject to biological secondary treatment with wastewater that has, prior to discharge).  The Court concluded that both letters constituted promulgation by EPA of effluent limits under the Clean Water Act and that they constituted legislative, rather than… More

Logging Road Runoff Does Not Require an NPDES Permit: The Supreme Court (For Now) Defers to EPA’s Interpretation of Its Own Regulations

Yesterday, in Decker v. Northwest Environmental Defense Center, the Supreme Court ruled that runoff from logging roads does not constitute a discharge from a point source that requires an NPDES permit.  The decision upholds EPA’s interpretation of its own regulations and overturns – what a surprise! – a 9th Circuit decision which had held that permits were necessary for logging runoff.

While EPA got the result that it wanted here, the decision may come back to haunt it in the long run.  The decision was largely based on what is commonly known as Auer deference, the rule that… More

Not a Shining Moment For Congress: Two Leading Economists Note the “Sordid History” of Cap-and-Trade Legislation

I have previously blogged about how strange our politics has become, when cap-and-trade programs, previously touted by conservatives and viewed skeptically by environmentalists as a “license to pollute,” somehow become for conservatives the poster child of big government programs.  It is nice when economists as respected as Dick Schmalensee and my friend Rob Stavins make the same point.  I’m not sure I can put it much more succinctly than this:

It is truly ironic that conservatives chose to demonise their own market-based creation.

The further irony would be if those opposed to climate change regulation, who have successfully… More

MassDEP Regulatory Reform Release 2.0: Wetlands, Water, and Waterways

In addition to its MCP package, MassDEP has also released its formal regulatory reform proposals for its water, wastewater, wetlands, and waterways programs.  As with the MCP proposal, the water package took longer than it should have, and may not be perfect, but is definitely worth the wait.  MassDEP has provided two separate helpful summaries of the changes, one concerning wastewater issues and the other concerning wetlands, waterways and water quality.

On the wastewater front, the most significant change is the complete elimination of sewer extension/connection permits.  MassDEP has acknowledged that those permits are purely redundant… More

MassDEP Formally Proposes MCP Reforms: It’s About Time? Job Well Done? Definitely Both.

On Friday, MassDEP issued the formal public comment draft of its package of regulatory reforms under the Massachusetts Contingency Plan.  Overall, it’s certainly a good package, which will facilitate getting to an endpoint with reduced transaction costs, but no decrease in environmental protection.  It’s not perfect (and you have until May 17, 2013 to provide comments to help make it more perfect), and it took far too long, but congratulations are still due to MassDEP.

MassDEP’s summary organizes the proposed changes into five broad categories.  Highlights in each area include the following:

Permit, Tier Classification, and Numerical… More

A Victory For Regulation Over Guidance? Are EPA and the Corps Giving Up on Post-Rapanos Wetlands Guidance?

As readers of this blog know, EPA’s use of guidance is a pet peeve of mine.  The issue has arisen with particular force in connection with EPA’s efforts to define Clean Water Act jurisdiction following the Supreme Court decision in Rapanos.  When I last posted on this issue, I noted that any potential theoretical benefits to guidance were being outweighed by the practical reality that issuing guidance on such an important issue ends up taking on many of the trappings of regulation, and thus does not save time or transaction costs.

Sometimes, I’m right.

Almost a year later,… More

California GHG Auction: Some Anecdotal Evidence of the Cost of Regulatory Uncertainty?

The California Air Resources Board just released the results of its second auction of GHG allowances.  While the auction for vintage 2013 allowances was still healthy, with all allowances sold at $13.62/allowance, the future auction, for vintage 2016 allowances, did not fare so well.  Fewer than half the allowances sold, and the clearing price was CARB’s reserve price of $10.71/allowance.

Why the disparity?  It’s significantly above any reasonable discount rate.  Could it be that uncertainty about the future of the allowance program might depress prices in the out years?  Given the fits and starts with which carbon regulation has… More

Building Energy Reporting Comes To Boston (Almost)

Today, Mayor Menino forwarded to the Boston City Council proposed amendments to the City of Boston Code that would require owners of many city buildings to report their energy and water use annually.  That information would then be made available to the public – presumably so that the market can work its magic and informed consumers can put pressure on building owners to increase the efficiency of their buildings.

Key aspects of the proposal include the following:

Non-residential buildings of at least 50,000 square feet would be required to report beginning in 2014.  Non-residential buildings of at least 25,000… More

Combine New Gas Plants, Lower Gas Prices, and More Stringent Emission Controls and What Do You Get? Lower Emissions

ISO New England has just released its Electric Generator Air Emissions Report for 2011.  The bottom line?

Total emissions of NOx, SO2, and CO2 have decreased by 12.1%, 29.5%, and 10.2% from 2010 to 2011 Emission rates for NOx, SO2, and CO2 have decreased by 8.7%, 25.8%, and 5.9% over the same time period

As our observant readers will have inferred, ISO reports that total energy generation was down by 4.6% from 2010 to 2011.  ISO attributes most of the emissions decrease to an increase in gas-fired generation and a corresponding decrease in coal- and oil-fired generation.  According… More

RGGI Ratchets Down the Cap: We’re Still Going to Have to Adapt

It was a busy week on the climate change front in Boston.  First, RGGI announced a new Model Rule.  Under the new Model Rule, summarized here, the 2014 cap would be reduced by 45%, from 165 million tons to 91 million tons.  Because such a sharp decrease in allowances will be expected to cause an increase in allowance prices, RGGI has now provided a safety valve, known as the cost containment reserve.  The CCR will make additional allowances available – 5 million allowances in 2014 and 10 million allowances thereafter – if the price exceeds a trigger, which… More

When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States.  The case is Rose Acre Farms v. NC Department of Environment and Natural Resources.

I won’t steal Pat’s thunder and you need to read her post if only because I cannot compete with (and had enough willpower not to steal)… More

MassDEP Tightens TCE Indoor Air Regulation: The $64,000 Question? What About Closed Sites?

Last week, MassDEP released new guidance on how it is assessing exposures to TCE in light of EPA new assessment of TCE risks released in September 2011.  The biggest issue is that concerns about fetal exposure have caused MassDEP to tighten the imminent hazard threshold for indoor air exposures to 2 ug/m3.  That’s an order of magnitude reduction from the prior standard of 20 ug/m3.

MassDEP has apparently thus far taken the position that it is not planning on reopening closed sites based on the new IH criterion.  However, they are going to be under a lot of pressure… More

What Makes One Invalid Rule More Valid Than Another? The Court of Appeals Declines to Rehear CSAPR, and Leaves CAIR In Place

Today, the Court of Appeals for the District of Columbia declined EPA’s petition for rehearing en banc in EME Homer City Generation v. EPA, leaving the original panel decision striking down EPA’s Cross-State Air Pollution Rule in place.  Environmental groups had hoped for a rehearing based on Judge Rodger’s emphatic dissent, but a request for en banc review is always an uphill battle.

The notable – and ironic – aspect of the case is that the Court’s decision vacating CSAPR leaves in place the Bush-era Clean Air Interstate Rule, or CAIR, which the Court struck down in 2008,… More

EPA Loses Another PSD Case: The Clean Air Act is “Extraordinarily Rigid”

In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting requirements for new sources of PM2.5.  Both the SIL and SMC provisions provided important exemptions from the PSD permitting regime. The Court ruled that neither provision was justified given the inflexible language of the Clean Air Act.

The SIL is “the level of ambient impact below which the EPA considers a source to have an insignificant effect on ambient air quality.”  However, it is possible for a source… More

EPA Splits the Baby on Backup Generators: Still Allows 100 Hours Use, But Now Requires Ultra Low Sulfur Diesel

Yesterday, EPA finalized revisions to the National Emissions Standards for Hazardous Air Pollutants for stationary reciprocating internal combustion engines, or – one of my new favorite acronyms – RICE.  The biggest dispute over the rule was the extent to which it would allow backup diesel generators to run for demand response purposes.

As we had noted previously, EPA proposed last May to allow backup generators to run for up to 100 hours for demand response purposes without being subject to emissions limits.  Both the Electric Power Supply Association and environmentalists raised concerns about allowing such extensive use of… More

EPA Formally Withdraws Numeric Turbidity Standards from Its Stormwater Rule for Construction and Development Sites

Daily Environment Report announced yesterday that EPA notified BNA that, late last year, EPA reached a settlement with the Utility Water Act Group and the National Association of Home Builders resolving litigation over EPA’s rule imposing effluent limitations on the “Construction and Development Point Source Category” and over its Construction General Permit.

The most contentious aspect of EPA’s regulatory efforts in this area was EPA’s inclusion of numeric turbidity limits.  The regulated community had severely criticized the data on which EPA relied in imposing the standard.  EPA, to its credit, had acknowledged the data flaws and stayed the… More

Dog Bites Man: Supreme Court Edition

In a curious, but unsurprising, decision yesterday, in Los Angeles County Flood Control District v. NRDC, the Supreme Court held that the flow of water containing pollutants from part of a river that has been culverted into a part of the river which still maintains natural banks is not a “discharge of a pollutant” within the meaning of the Clean Water Act.  The decision appears to be controlled by the Court’s prior decision in Florida Water Management District v. Miccosukee Tribe, in which the Court had similarly ruled that pumping of polluted water from one part of a… More

More Than Four Years Later, the Bush EPA Is Still Losing Court Decisions

On Friday, the Court  of Appeals for the District of Columbia Circuit rejected EPA’s approach to implementation of the PM2.5 NAAQS.  The fine particulate NAAQS was first published in 1997, and EPA issued implementation rules in 2007 and 2008.  Those rules specified that EPA Subpart 1 of Part D of title I of the CAA – the general implementation provisions – rather than Subpart 4, which applies specifically to PM10.  Because the Subpart 4 rules provide less flexibility and are more stringent, environmental groups sued, challenging EPA’s position.

In NRDC v. EPA 2013, the Court of Appeals never even… More

Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”

In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups.  The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance, so seemed worth mention.

The issue in the case was that the environmental groups, known collectively as “Beyond Nuclear,” contended that the relicensing proceeding should include wind… More

I Guess You Can’t Say That EPA Gives Lumps of Coal For Christmas Presents: It Does, However, Finalize Adjustments to the Boiler MACT Rule

Last Friday, just in time for the Christmas holiday, EPA finalized revisions to the Boiler MACT rule.  As it has done with other significant rules, EPA basically fine-tuned the existing rule, responding to some specific comments, adding a smidgen of flexibility here, and a dash of extra time to comply over there.  I think that EPA deserves credit for responding to the regulated community, while still imposing rules that provide significant benefits.

Environmentalists complained that the delay will lead to additional premature deaths.  The National Association of Manufacturers complained about “overly aggressive regulations.”  I still don’t know… More

MassDEP Begins to Roll Out Its Regulatory Reforms: Good News on the Solid Waste Front

As I’ve previously discussed, MassDEP has been embarked on an effort – prompted by shrinking budgetary resources – to promulgate a package of regulatory reforms.  While the package was announced in March 2012 and updated last October, we only saw the first set of actual proposed regulations last week, when MassDEP announced changes to both its asbestos regulations and its solid waste regulations.  This post will focus on the solid waste package.

On initial review, it’s a good package.  It’s not a panacea, but was never intended as such, and it certainly contains a… More

MassDEP Issues a New Solid Waste Master Plan: A Difficult Road to Achieve Some Ambitious Goals

Late last week, MassDEP announced release of the 2010-2020 Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  James Collins might describe that as a Big Hairy Audacious GoalI have nothing against Big Hairy Audacious Goals, but sometimes they are implemented through Big Hairy Audacious Regulations.  Time will tell if that’s the case here.

The Master Plan goals are to reduce solid waste by 30% by 2020 and 80% by 2050 – not quite zero waste, but more than sufficiently hairy and audacious.  To work… More

Yawn: EPA Promulgates New Fine Particulate Standard

On Friday, EPA announced promulgation of its revised fine particulate, or PM2.5, NAAQS.  Why am I yawning?  Let me count the ways:

1.         Because, in 2009, the District of Columbia Court of Appeals rejected EPA’s prior effort to keep the PM2.5 standard at 15 ug/m3.

2.         Because, as I have previously noted, the Court of Appeals pretty much told EPA that it could not ignore the advice of its Clean Air Science Advisory Committee in setting the NAAQS.

3.         Because the CASAC basically advised EPA to set a standard… More

Another Dispatch From the Guidance Front: Is EPA’s Vapor Intrusion Guidance Ready For Prime Time?

A story in Tuesday’s BNA Daily Environment Report notes that several representatives of industry interests are asking EPA to hold off on issuing its much-anticipated vapor intrusion guidance until it can be subject to public comment.  Apparently, the current draft was sent to regional offices – but not distributed to the public – for review.  Someone at Inside EPA leaked it to Fox Rothschild and asked for comment.  Fox Rothschild attorneys then submitted a letter to EPA requesting a formal opportunity for public comment.

To me, the episode illustrates what I’ll humbly call Jaffe’s Iron… More

EPA Notches Another NSR Settlement: Is This The Most Successful Program That Shouldn’t Exist?

Last week, EPA announced that it had reached yet one more – its 24th – settlement under as a result of its NSR enforcement initiative.  This time, it was Louisiana Generating’s Big Cajun II plant, in New Roads, Louisiana.  By now, the contours are familiar, including a penalty of $14 million and injunctive relief estimated to cost approximately $250 million.  Changes will include:

Installation of SNCR (not SCR) on all units to control NOx. Installation of dry sorbent injection as a… More

MassDEP Issues Final Rules for Anaerobic Digestion Facilities: Let’s Hope They Work

This week, MassDEP announced that it had finalized regulatory revisions intended to encourage anaerobic digestion projects in the Commonwealth. The regulations are the culmination of a long stakeholder process . Since our firm knows from personal experience MassDEP’s ability to tie itself in knots on this issue, there is little doubt that this package was necessary as a practical matter.

Highlights of the regulations include:

An exemption from the site assignment process for anaerobic (and aerobic) digestion operations A general permit for digestion operations receiving no more than 100 tons per day (30 day rolling average) – That’s up from a 60 tpd limit… More

Little Ado About Very Much: EPA Reinterprets Its PCB Guidance

pcb_guidanceOn Tuesday, EPA issued its “reinterpretation” of its understanding of what building wastes constitute “PCB bulk product waste” under TSCA regulations, as opposed to “PCB remediation waste.” Previously, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB bulk product waste, while the underlying contaminated building material would be considered PCB remediation waste. Now the building material will also be considered PCB bulk product waste. Indeed, EPA has slightly expanded the reinterpretation from its draft proposal; it now allows the building substrate to be characterized as PCB bulk product… More

And Some Potential Developments on the Water Side As Well

Yesterday, I did an update on Clean Air Act developments. Today, it’s the Clean Water Act’s turn. According to the Daily Environment Report, EPA will meet its deadline of June 13, 2013 to promulgate a post-construction stormwater rule. I found it interesting that the story states that EPA has nearly completed its cost-benefit analysis for the rule – even though it has not yet made a decision on the size threshold. Presumably, the cost-benefit analysis is being performed across a range of possible thresholds.

The same story also notes that EPA expects finally to release its long-awaited revised post-Rapanos guidance on CWA jurisdiction. I’m with… More

Clean Air Grab Bag

There have been so many developments recently on the air front (and I’m so far behind due to an appellate brief) that I thought I would combine a few recent items.

First, oral arguments were heard Monday on the challenges to the Bush EPA ozone NAAQS of 0.075 ppb. As I have previously noted, the Court of Appeals for the District of Columbia Circuit has made pretty plain that EPA cannot ignore the recommendations of the Clean Air Science Advisory Committee in setting the NAAQS. Monday’s argument confirmed that view, with Judges Tatel and Griffith both posing tough questions to EPA regarding how… More

Coming (Sort of) Soon To An Ocean Near You: 4 Gigawatts of Wind Power

As a follow-up to my post earlier this month on BOEM’s release of the Environmental Assessment for the Massachusetts Wind Energy Area, I just thought that I would note that, according to Daily Environment Report, Maureen Bornholdt of BOEM announced earlier this week at a public hearing on the EA that BOEM expects to start auctioning leases for the WEA by the fall of 2013. Of course, that’s just when the fun starts. Each lessee is going to have to do a full environmental review before construction even begins, so it will still be some time before we see electrons flow from the… More

Climate Change and Cost Benefit Analysis: Cass Sunstein Is Talking, But Is Anyone Listening?

Sunday’s New York Times had an op-ed piece by Cass Sunstein, recently departed head of the Office of Information and Regulatory Affairs, advocating for sensible measures to address global climate change. Sunstein’s argument is that

Economists of diverse viewpoints concur that if the international community entered into a sensible agreement to reduce greenhouse gas emissions, the economic benefits would greatly outweigh the costs.

I don’t disagree with anything he says; I only wonder whether anyone is paying attention. On one hand, while Sunstein notes that President Obama supports cost-benefit analysis, Democrats in Congress – and many environmentalists – have long been skeptical,… More

Who Knew? The National Research Council Discovers That Many Groundwater Cleanups Will Take More Than 100 Years

Daily Environment Report today noted that the National Research Council has produced a study, Alternatives for Managing the Nation’s Complex Contaminated Groundwater Sites, which assesses the scope of the groundwater contamination problem and our ability to address it. One significant takeaway from the report is that

Significant limitations with currently available remedial technologies persist that make achievement of MCLs throughout the aquifer unlikely at most complex groundwater sites in a time frame of 50-100 years. Furthermore, future improvements in these technologies are likely to be incremental, such that long-term monitoring and stewardship at sites with groundwater contamination should be expected.

This… More

CASAC Weighs in on the Ozone NAAQS: Might the Clean Air Act Require a Standard Below Background?

The Daily Environment Report last week provided an update on the current status of EPA’s development of a new National Ambient Air Quality Standard for ozone. The current 8-hour standard of 75 ppb is going to be revised downward; EPA currently plans to issue a final rule by September 2014.

Last month, the Clean Air Science Advisory Committee weighed in on EPA’s draft policy assessment for the ozone NAAQS. CASAC found that

the PA provides a strong rationale for consideration of ozone standards (8 hour averages) of 60 ppb and 70 ppb. The PA also provides adequate justification for considering concentrations below 60 ppb,… More

EPA Issues Two New Superfund Guidance Documents: Plus Ca Change, Plus C’est La Meme Chose

EPA recently released two guidance documents relevant to Superfund practitioners.  One establishes revised procedures regarding how EPA will manage negotiations with PRPs.  The second updates EPA’s guidance on how it will handle Alternative Sites. To me, both have the flavor of deck chair management on the Titanic.

The RD/RA negotiation guidance has to be seen to be believed. It’s a document that seems reasonable on its face, but when you step back and take a big picture look, you have to ask whether there isn’t something wrong with a program requiring a 10-page set of details regarding the timeline for how to negotiate a… More

Probably All You Need to Know About the Prospects for a Price on Carbon Any Time Soon

Two trade press reports today make clear how difficult it will be to put a price on carbon in the U.S. any time soon. First, today’s ClimateWire reported that climate skeptics are trying to preempt any effort by conservative budget-balancers to use a carbon tax to accomplish budget goals while still cutting income taxes. ClimateWire quotes Myron Ebell of the Competitive Enterprise Institute as saying that

We have to make the idea of a carbon tax toxic.

Then, GreenWire reported that the American Enterprise Institute (a more old-line conservative think tank) announced that it would hold a forum on the economics of a carbon… More

Accidental Success? Even Without National Climate Policy, US Emissions May Fall Enough To Avoid Failure

In 2009, at the international climate talks in Copenhagen, Denmark, President Obama pledged that the US would reduce its greenhouse gas emissions 17% below 2005 levels by 2020. Since then, national efforts toward comprehensive climate legislation, or even making concrete strides to intentionally reduce emissions on a national scale have been, let’s say… lackluster. But even so, a recent report by Resources for the Future predicts that the US will hit 16.3% reductions over a 2005 baseline by 2020.  Moreover, because the report is intentionally conservative, and downplays the future impacts of investments in efficiency and other reductions in demand, the 17% goal… More

Is EPA Considering Allowing PCB Cleanups to Proceed Under RCRA, Rather Than TSCA? I’ll Believe It When I See It (And I Hope I See It)

One headline in today’s Daily Environment Report stated that “EPA Considers PCB Regulatory Reform Amid State Regulator Criticism of Program.” Even my advanced sarcasm skills failed me on reading this. I’ll therefore settle for “about bloody time.”

The original fault certainly lies with Congress, not EPA. The notion that Congress needed a separate statutory regime to deal with one specific compound (ok, family of compounds) was always foolish. TSCA and RCRA were enacted with 10 days of each other in 1976. No one has ever justified the PCB provisions of TSCA, given the contemporaneous passage of RCRA. The… More

The Wheels of Regulatory Reform May Grind Slowly, But In Massachusetts, At Least They Are Grinding

In April 2011, MassDEP launched a regulatory reform initiative. Yours truly participated in the original stakeholder group working with MassDEP to develop a list of potential reforms. Last week, MassDEP provided an update on the status of the reform package. While it has probably taken longer than Commissioner Kimmell had hoped, I am pleased to say that there is a lot of good stuff at this point, including some items that have been added since the original Action Plan was finalized in March 2012. Highlights include:

Elimination of MassDEP sewer connection permits. The existing program represents… More

Another Fine Mess: A Clean Air Act Case Demonstrates the Cost of Regulatory Uncertainty

Late last month, in Wildearth Guardians v. Lamar Utilities Board, Judge David Ebel ruled that Lamar violated the Clean Air Act by not obtaining a MACT determination, given that its potential emissions of hydrochloric acid were 10.3 tons per year, above the 10 tpy limit for any single hazardous air pollutant. The decision provides an abject lesson on the costs imposed by regulatory uncertainty.

The facts, in bullet form, are as follows:

In 2000, EPA determined that coal- and oil-fired electric generating units would be subject to MACT. In 2004, Lamar decided to upgrade an existing small natural gas-fired… More

FTC’s New Guidance Has Teeth to Go After Greenwashing

Companies who want to market their products as being good for the environment will need to back up their claims more carefully, in light of the Federal Trade Commission’s new environmental marketing guidelines, released this week. The “Guides for the Use of Environmental Marketing Claims,” or Green Guides, updated for the first time since 1998, discourage companies from using broad claims like “green,” “eco-friendly”, or “environmentally preferable” that are difficult, if not impossible, to substantiate. Although the guidelines are not formal rules, they do specify how FTC will enforce US marketing laws.

Instead, environmental claims should be clear,… More

Another Nail in the Public Nuisance Litigation Coffin: The 9th Circuit Affirms Dismissal of the Kivalina Claims

On Friday, in Native Village of Kivalina v. ExxonMobil, the 9th Circuit Court of Appeals may have sounded the death knell for public nuisance litigation concerning the impacts of climate change, affirming dismissal of the damage claims brought by the City of Kivalina and the Native Village of Kivalina against major greenhouse gas emitters.

kivalina(1)As most readers will know, last year, in American Electric Power v. Connecticut, the Supreme Court determined that public nuisance claims for injunctive relief have been displaced by the comprehensive federal regulatory scheme embodied in… More

EPA Wins an NSR Case: “Routine” Pretty Much Means Routine for the Unit

Last week, in United States v. Louisiana Generating, EPA won a ruling regarding what type of projects fall within the routine maintenance, repair or replacement exception from the rule that facility modifications are subject to PSD/NSR requirements. The decision is thorough in that it carefully reviews the so-called “WEPCO Factors” – the nature, extent, purpose, frequency, and cost of the work, and applied them to the work at issue in this case, i.e., reheater replacements at the Big Cajun II power plant.

big-cajun-2Notwithstanding the thoroughness of the court’s analysis, I… More

MassDEP Issues Its Decision on the Palmer Bio-mass Facility: Right on the Merits, Wrong on Standing

I finally had an opportunity to review the recent Final Decision in In the Matter of Palmer Renewable Energy, concerning the proposed Palmer biomass facility. Last week, MassDEP Commissioner Ken Kimmell affirmed the Recommended Final Decision by Presiding Officer Timothy Jones, rejecting challenges by the Conservation Law Foundation to the air permit issued to the project by MassDEP. For practitioners, the case is important, but a decidedly mixed bag.

First, on the issue of broadest importance, I’m sorry to say that MassDEP missed a real opportunity to conform its standing requirements to the actual meaning of Chapter 30A. Instead,… More

EPA Approves Colorado’s Regional Haze Plan: What Does Colorado Know That the Rest of the Country Hasn’t Yet Figured Out?

On Tuesday, EPA formally approved Colorado’s state implementation plan to address regional haze. According to a press release from Governor John Hickenlooper, the plan will reduce power plant emissions by more than 70,000 tons by 2018. Notably, it will include closure of coal-fired power plants. Indeed, Daily Environment Report stated that “coal-fired power generation will be gone from the Denver metro region by 2018” as a result of the plan.

The press release was a love-fest. The plan was endorsed by the American Lung Association, EDF, Public Service Co. of Colorado (an… More

Ban the Bottle or Preserve Our Liberty? Concord Bans the Sale of Certain Plastic Water Bottles

This may not be the most earth-shattering stories reported in this space, but it is a Massachusetts story, and the rhetoric surrounding the issue is sufficiently noteworthy that I thought I would, er, note it. Concord, Massachusetts, has apparently become the first community in the nation to ban the sale of certain plastic water bottles.

According to the Boston Globe, the ban was championed by Concord resident Jean Hill, who was quoted as saying “I hope other towns will follow. I feel bottled water is a waste of money.” Actually agree with Ms. Hill that bottled water is a waste… More

RGGI’s Sweet 17th: Cumulative Proceeds Top A Billion Dollars

Last week marked the 17th Auction in the Regional Greenhouse Gas Initiative (RGGI). The number of bidders who went through the process of qualifying to participate in the auction is the lowest it has been in the program’s history — 29, down from 35 from the last auction in June, and well below the high of 84 in the first auction involving all member states, held in December 2008. Only 24.5 million allowances (65%) of the nearly 38 million offered for sale by the now-9-state organization (sans New Jersey) sold at the floor price of $1.93… More

An Example of True Judicial Restraint: Judge Robert Chambers Affirms the Highland Mining 404 Permit

After my post on judicial restraint – and the lack thereof – in Texas v. EPA, the opinion issued last week by Judge Robert Chambers, in Ohio Valley Environmental Coalition v. United States Army Corps of Engineers, affirming the Corps’ § 404 permit for Highland Mining’s Reylas Surface Mine, seemed particularly notable. I cannot recall of similar example of a judge who was almost visibly restraining himself, issuing a decision that he plainly did not want to issue, for one reason: because he thought that the proper application of the law dictated the result, however distasteful to… More

Judicial Activism and Judicial Restraint: The 5th Circuit Vacates EPA’s Disapproval of Texas SIP Revisions Concerning Minor Sources

On Friday, in Texas v. EPA, the 5th Circuit Court of Appeals vacated EPA’s decision rejecting Texas’s SIP revisions that would have implemented (and did implement, for 16 years) a Flexible Permit Program for minor NSR sources. While genuflecting at the altar of deference to agency decisionmaking, the Court concluded that EPA’s rejection was not based on either EPA factual determinations or on its interpretation of federal, as opposed to state, law. The Court also concluded that EPA had not in fact relied on the reasons given in its briefs, and refused to defer to EPA’s “post hoc rationalizations.”… More

Challenging EPA NPDES Permitting Decisions Remains a Really, Really, Uphill Battle

The decision by the First Circuit Court of Appeals on Friday in Upper Blackstone Water Pollution Abatement Control District v. EPA confirms how difficult it is to challenge EPA NPDES permitting decisions. The case involves nutrient loadings in the Blackstone River and, ultimately, Narragansett Bay. As the opinion discusses, phosphorus in the Blackstone River and nitrogen in Narragansett Bay are causing severe eutrophication problems. As a result, the permit issued by EPA (Massachusetts is one of a handful of states without delegated NPDES programs) contained extremely stringent limits for both phosphorus and nitrogen.

Both the District and the… More

More on Back-Up Generators: NESCAUM Raises Concerns

For those of you following EPA’s proposal to allow increased use of backup generators used in demand response programs, NESCAUM has now joined the fray. In a report released yesterday and available on its website, NESCAUM stated that:

Preliminary screening analyses indicate that uncontrolled diesel backup generators operating under the exemption included in EPA’s recent proposal could by themselves create hotspots exceeding the national health-based 1-hour NO2 air standard.

As a result, NESCAUM makes a number of recommendations to improve the information base regarding backup generators and their emissions. NESCAUM also recommends that EPA require use of… More

EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance on Mountaintop Removal Permits Under the CWA

Yesterday, Judge Reggie Walton issued his final decision in National Mining Association v. Jackson. The decision is another blow to EPA’s efforts to regulate through guidance rather than notice and comment rule making.

The decision is not a surprise to anyone who has been following the case. As I noted early last year, Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance “qualified as final agency action because … it is … being applied in a binding manner.”

Nothing in the intervening 18 months caused Judge Walton to alter his views. EPA… More

EPA Wins Another CAA Case: No Affirmative Defense For Excess Emissions During Planned Maintenance

Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals affirmed EPA’s decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA’s determination regarding excess emissions during startup, shutdown, and malfunction/maintenance (SSM). In short, the Court agreed with EPA’s decision to allow sources to assert an affirmative defense to an enforcement case related to excess emissions during unplanned SSM events, but… More

More Tea Leaves to Read: EPA Announces an Eleven-Month Delay in Its Cooling Water Intake Structure Rule

Earlier this week, I noted that EPA had announced that it was reconsidering parts of the Utility MACT rule and staying its effectiveness for three months. Yesterday, EPA announced that it was delaying for 11 months final promulgation of its cooling water intake structure rule for existing facilities under the Clean Water Act.

Reaction was predictable. Reed Super, plaintiffs’ attorney was “disappointed,” but clearly resigned. Senator Inhofe characterized the delay as:

President Obama’s decision to punt on yet another job-killing EPA regulation before the election.

Of course, short of committing collective More

How Good Are You At Reading Tea Leaves? EPA Intends To Reconsider Parts of the Mercury Rule

On Friday, EPA announced that it was reconsidering part of the Utility MACT rule. As part of the reconsideration, EPA will stay the effectiveness of the new source emission standards in the rule for three months.

EPA stated that:

We anticipate that he focus of the reconsideration rulemaking will be a review of issues that are largely technical in nature. Our expectation is that under the reconsideration rule new sources will be required to install the latest and most effective pollution controls and will be able to monitor compliance with the new standards with proven monitoring methods.

We… More

Two Wins in a Week for EPA on NAAQS: The DC Circuit Upholds EPA’s New SO2 Standard

On Wednesday, I discussed the DC Circuit’s decision affirming EPA’s revised NAAQS for NOx. Today, the DC Circuit upheld EPA’s revised SO2 standard. The tenor of today’s decision, written by David Sentelle, another Reagan appointee (the NOx decision was written by Douglas Ginsburg), is fairly similar to that in the NOx decision. Here’s the short version of the opinion:

EPA must establish NAAQS that protect public health with “an adequate margin of safety.” For that reason, it is appropriate for EPA to establish standards below levels at which studies have shown harm to occur. EPA… More

Not a Good Start for Challenges to EPA NAAQS Revisions: The District of Columbia Court of Appeals Affirms EPA’s New NOx NAAQS

Yesterday, in American Petroleum Institute v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s revisions to the National Ambient Air Quality Standard for NOx. The revisions adopted, for the first time, an hourly NAAQS for NOx, in addition to the annual standard.

API made a number of assertions that EPA had been arbitrary and capricious in its review of the scientific evidence concerning potential short-term impacts. The most important were EPA’s reliance, in part, on a study which had not been the subject of peer review, and EPA’s alleged failure to consider a study suggesting that short-term… More

A Thoughtful Discussion By Policy Makers of a Difficult Issue? How Refreshing!

As I noted in May, EPA’s recent proposed rule regarding backup generators would allow additional operations by such generators when used to assist in demand response. It’s a tricky issue, because diesel generators are not clean, and the aggregated emissions from a number of small, but uncontrolled diesel generators can be significant. 

For now, based on the proposal, EPA has come down on the side of encouraging the demand response industry. Nonetheless, at a recent conference, both Gina McCarthy at EPA and Jon Wellinghoff, FERC Chairman, admitted that the issue was difficult. I particularly appreciated Wellinghoff’s remarks:

I’m not a… More

The Tailoring Rule Requires No Alterations: EPA Leaves GHG Permitting Thresholds Unchanged

Last Friday, Lisa Jackson signed “Step 3” of the Tailoring Rule. In what was probably not a surprise to many, EPA determined

that state permitting authorities have not had sufficient time to develop necessary permitting infrastructure and to increase their GHG permitting expertise and capacity. By the same token, EPA and the state permitting authorities have not had the opportunity to develop and implement streamlining approaches.

In other words, subjecting more facilities to the GHG rule would still pose a risk of tying the system in knots, so EPA’s not going there – at least not yet.

EPA also promulgated… More

Easy Cases Make No Law (We Hope): The D.C. Circuit Upholds EPA’s Greenhouse Gas Regulations

Yesterday, in Coalition for Responsible Regulation v. EPA, the D.C. Circuit Court of Appeals rejected all challenges to EPA’s GHG rules. The decision is a reminder that important cases, or those with big stakes, are not necessarily difficult cases. Anyone reviewing the decision will quickly see that, to the court, this was not a hard case. Indeed, the tone of the opinion has the feel of a teacher lecturing a student where the teacher has a sense that the student is being willfully obtuse.

The bottom line is that EPA not only had authority to issue the regulations; it had a legal… More

EPA Proposes Revisions to the PM 2.5 NAAQS: How Much Will It Matter?

Last Thursday, in response to a court order, EPA finally proposed revisions to the national ambient air quality standard for PM2.5. The most significant part of the rule is EPA’s proposal to lower the primary annual standard from 15 ug/m3 to a range of from 12 ug/m3 to 13 ug/m3.

At a certain level, the proposal should not really be news and should not have a significant impact. After all, in 2009, the D.C. Circuit Court of Appeals rejected EPA’s proposal at that time to retain the 15 ug/m3 standard. The court concluded that EPA had not justified retaining the standard,… More

In RGGI News: Compliance is Up, Emissions are Down, Sales are Flat, and New Jersey and New Hampshire are Either In Or Out

There have been a number of news stories about the Regional Greenhouse Gas Initiative (RGGI) in the last few weeks.  First, nearly all of the 211 power plants subject to the requirements of RGGI’s first compliance period met their compliance obligations for 2009-2011.  Only five facilities failed to hold enough allowances in their compliance accounts to cover their emissions from this period — four plants from New York, and one from Connecticut.   The report also found that aggregate emissions from these plants were, as expected, far below the allowance cap set for the first 3… More

Do I Detect a Pattern? Congressional Inaction on TSCA Leads to Scattershot State Regulation

Yogi Berra is credited with the phrase “déjà vu all over again.” Today’s environmental law manifestation of Yogi’s phenomenon stems from the current gridlock in Congress. A story last week in the Daily Environment Report noted that, following Congressional failure to enact TSCA reform, 30 states (give or take, apparently) have either passed some kind of chemical management law or issued an executive order addressing the issue of toxics control.

And thus we have a result that pleases no one. Environmentalists are upset because there is still no comprehensive reform – 20 states (give or take!) do not have toxics regulation. Manufacturers… More

One Small Step For Regulatory Coordination: EPA Incorporates the Transport Rule Into the Regional Haze Rule

On May 30, EPA issued a final rule as part of its regional haze program. The most significant aspect of the rule is the determination that the trading programs in EPA’s Trading Rule, now known the by inelegant acronym CSAPR,

achieve greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific Best Available Retrofit Technology, or BART. 

Of course, the provision only applies to electric generating units in states covered by CSAPR and only to emissions of SO2 and/or NOx. Nonetheless, it represents a significant step forward by EPA in its efforts to… More

EPA Issues a § 316(b) Notice of Data Availability: Even Edison Electric Is Impressed

Late last week, EPA issued a Notice of Data Availability concerning its proposed rule for cooling water intake structures at existing facilities. The NODA stated that, since it had issued the proposed CWIS rule, it had received more than 80 studies providing additional data on CWIS structures at existing facilities. Those studies have led EPA to consider potential revisions to the rule prior to promulgation.

Some of the specific revisions now under consideration include:

The addition of site-specific impingement mortality controls Compliance with impingement mortality limitations based on defined technologies such as closed cycle recirculating systems Streamlined permitting for modified… More

BOEM Identifies a Wind Energy Area offshore Massachusetts: Will the Next Project Take Less Time Than Cape Wind?

offshore wind areasLast Wednesday, the Bureau of Ocean Energy Management announced that it has identified an area offshore Massachusetts for commercial wind energy development. BOEM narrowed the area somewhat from what had been proposed, based on certain wildlife concerns. Although the identification of the area as part of the Department of the Interior’s Smart from the Start program will allow expedited permitting, individual projects by lessees would be subject to NEPA.

One can only hope that this process will indeed result in the successful siting of large-scale commercial wind projects offshore. Solar energy… More

Two Strikes Against Common Law Approaches to Climate Change: The Atmosphere Is Not A Public Trust

Yesterday, the District Court for the District of Columbia dismissed the so-called “public trust” climate change law suit. I will certainly give the plaintiffs in these cases credit for both originality and persistence. Legal merit and good public policy are another matter.

In any case, the plaintiffs sued EPA and various other federal agencies, seeking a finding that the agencies have failed adequately to protect a public trust asset, also known as the atmosphere, from climate change. The plaintiffs requested an injunction requiring that the agencies take actions necessary to reduce CO2 emissions by 6% yearly, beginning in 2013.

It did not… More

Mayors Request Moratorium on Stormwater Enforcement — Will EPA Listen?

E&E News reported yesterday that the U.S. Conference of Mayors has requested a “moratorium” on Clean Water Act enforcement of stormwater limitations on municipalities. The report makes clear that the Mayors avoided an attack on either the CWA or the current EPA administration. Moreover, they acknowledged that there is still “much to be done to protect our water resources.”

Why the moratorium request, then? Two words – they’re broke. One of the mayors who spoke was Michael Bissonnette of Chicopee, in the great Commonwealth of Massachusetts. According to Mayor Bissonnette, the cost of stormwater compliance in Chicopee will be $200 million – this for… More

EPA’s Enforcement Authority after Sackett: Same Old, Same Old

After the oral argument Sackett v. EPA presaged where the decision was coming down, I raised the question whether EPA would try to persuade district courts that nothing really had changed. On occasion, I call them correctly. According to E&E News, Mark Pollins, director of EPA’s Water Enforcement Division, in commenting on Sackett, said

What’s available after Sackett? Pretty much everything that was available before Sackett. Internally, it’s same old, same old.

Tone deaf doesn’t quite cover this one. If Mr. Pollins’s remarks are representative, and my experience tells me that they are, EPA just doesn’t get it. For one thing,… More

EPA Proposes Revisions to the Back-up Generator Rule: Reasonable Flexibility or a Dirty Loophole?

Yesterday, EPA released proposed revisions to its rules governing emissions from emergency back-up generators. It’s not always the most exciting of topics, but it is important. Many facilities have back-up generators and I know from experience advising clients that, precisely because back-up generators do not run that often, operators can run into compliance issues.

The most important aspect of the proposed rule is that EPA would allow back-up generators to run for up to 100 hours without being subject to emissions limits for the following reasons:

Monitoring and testing Demand response Voltage changes of at least 5%

Moreover, EPA is proposing… More

Repeat After Me: There Ain’t No Such Thing as a Free Lunch

Yesterday, the Boston Globe reported that MassDEP is considering promulgating new regulations to manage noise from on-shore wind turbines. I sympathize with my friends at MassDEP, who are trying to implement a clean energy agenda and ensure that Massachusetts meets the aggressive carbon reduction targets in the Global Warming Solutions Act. This is no easy task in a home rule state that would have a fighting chance to win any national NIMBY championship competition. 

I hope against hope that the Department can take some action that will not unduly obstruct construction of wind projects, but that will, if not… More

EPA Defends the Biomass Deferral Rule — It Feels More Like Rube Goldberg Every Day

On Tuesday, EPA filed its brief in support of its rule deferring regulation of GHG emissions from biomass facilities until 2014. I have two immediate reactions.

The first is that, as a policy matter, the deferral was absolutely the right thing to do. The science remains complex and not fully understood. Any regulations promulgated now are likely to be revised at some point. That kind of regulatory uncertainty is not any way to run an agency.

On the other hand, I find EPA’s legal justification less than fully convincing, to say the least. In fact, the more EPA defends its overall approach to… More

Cass Sunstein Is Still Pushing Regulatory Reform — Why Isn’t Everyone Happy?

Yesterday, President Obama released another Executive Order on regulatory reform. The new order expands on EO 13563, and provides three new requirements on agencies:

Twice yearly reporting by agencies to the Office of Information and Regulatory Affairs concerning the status of reform efforts, Increased public participation in regulatory reform, and An obligation to prioritize agency reform efforts to “produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health”

Reactions were predictable.  According to the Daily Environment Report, Celia Wexler of the Union of Concerned Scientists decried “the latest in a series of… More

Here’s a Suprise — A Cap-and-Trade System For Nutrients Would Substantially Decrease the Cost of Nutrient Reductions in Chesapeake Bay

bayslammYesterday, the Chesapeake Bay Commission released a study showing that implementation of a nutrient trading system would dramatically reduce the cost to achieve nutrient reductions in Chesapeake Bay. Pardon me if I seem to be posting a lot of dog bites man stories recently.

Although it should not come as a surprise that a trading system would permit nutrient reductions to be attained most cost-effectively, the scope of the benefit is worth noting. If trading were allowed basin-wide, and among both point and agricultural non-point sources, costs are projected to… More

Low Carbon Prices Don’t Mean Cap-and-Trade Systems Are Failing

For those who think that low allowance prices mean that RGGI and the European Union Emissions Trading Scheme are failing, I recommend this post last week by my friend Rob Stavins. Money quote:

RGGI may not be particularly relevant, but it is not thereby a flawed system; surely it is not a failure.  Rather, a great environmental success has been achieved by the “fortunate coincidence” of low natural gas prices, economic recession, and mild weather.  This is hardly something to be lamented…. The low allowance prices are evidence of a success outside of the RGGI market, not evidence of… More

New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanos guidanceGreenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.

At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance, for one basic reason. The guidance is only temporary; EPA has already acknowledged the need to pursue rulemaking as the long-term solution.

That being said, however, I… More

Dog Bites Man, Greenhouse Gas NSPS Edition

Yesterday, Greenwire reported about speculation regarding what impact EPA’s proposed New Source Performance Standards for greenhouses gases would have on potential regulation of existing sources. As Greenwire noted, while EPA sought to downplay the impact of the NSPS on regulation of existing sources, both environmentalists and industry representatives think that regulation of existing sources is pretty much inevitable.

My favorite bit from the story is that OMB apparently deleted the following language from EPA’s proposal:

At a future date, EPA intends to promulgate emission guidelines for states to develop plans reducing CO2 emissions from existing fossil-fuel-fired” power plants.

I… More

Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups

I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued.

As most readers know, EPA published two separate proposals for regulating coal ash – one under Subtitle C and one under Subtitle D – on June 21, 2010. Since then, there has been mostly radio silence from EPA, aside from a Notice of Data Availability and request for additional comment last… More

Memo to EPA: Courts Really Don’t Like It When You Appear High-Handed

Spruce No_ 1 mine(1)The decision last week by Judge Amy Berman Jackson – an Obama appointee – to reject EPA’s authority to withdraw its “specification” which authorized the Army Corps of Engineers to issue a § 404 permit to the Mingo Logan Spruce No. 1 mine would be important in its own right. In combination with the recent Supreme Court decision in Sackett, and given the language used in both cases, the combination rebuke to EPA is worth attention.

The permitting history of the Spruce No. 1 mine was lengthy… More

EPA Issues Its GHG NSPS: Cap and Trade Never Looked So Good

On Tuesday, EPA announced release of its proposed New Source Performance Standards for carbon pollution from new power plants. I’m feeling like a broken record here. Everyone’s acting on rational motives (if not rationally), but the result remains, to put it mildly, suboptimal. On the paramount environmental issue of the day, we’re going about it all wrong, when we know that there is a better way.

I cannot really blame EPA or the environmentalists.  Indeed, at a certain level they cannot be faulted unless you don’t believe in climate change, and I am not in that camp. Since climate change is real,… More

RGGI’s First Auction of the Second Compliance Period

The auction held last Wednesday, March 14th, by the Regional Greenhouse Gas Initiative (RGGI) was the fifteenth held so far — making it seem far from novel –  but as we highlighted in January, this first auction of RGGI’s second compliance period could provide interesting insight into the future of the program.   

According to the market monitor report, 21.5 million (62%) of the 34.8 million allowances offered for sale by the 9-state group sold at last week’s auction, with the 20 participating bidders paying $1.93 (the new floor price).  Although two of the entities who submitted bids for… More

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.

The first is what will happen to CWA enforcement. On that score, I actually largely share Justice Alito’s view:

The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determina­tion under the… More

The Geneva Association Warns Governments To “Wake Up”: Have They Too Drunk The Koolaid?

Last week, the Geneva Association, which describes itself as “the leading international insurance think tank for strategically important insurance and risk management issues,” issued a report entitled “Extreme events and insurance: 2011 annus horribilis.” Quick take-away? Insurance losses are growing. Why? While there were large earthquakes in 2011, the bigger long-term concerns are extreme weather events and an increasing number of people and resources located in areas subject to such events.

What’s my primary response to reports such as this, other than that dog is biting man again? It’s to wonder what climate skeptics think of all this. I understand the inclination of conservatives… More

New Jersey Promulgates A Regulation Permitting Waiver of Environmental Regulations: Will the Environment In New Jersey Collapse as a Result?

Late last week, the New Jersey Department of Environmental Protection adopted a rule providing itself with the authority to waive environmental regulations in limited circumstances. According to the Daily Environmental Report, opponents of the regulation immediately attacked the rule, saying that it

is an attack on environmental protections and will open up New Jersey’s regulatory system to pay-to-lay. This rule will not only undo 30 years of environmental protections but will create more pollution, traffic, and flooding and threaten public health and safety.”

Yikes. And you already thought that New Jersey was just a string of Superfund sites linked by the… More

CEQ Issues Guidance For Streamlining NEPA Reviews: Can You Say “Content-Free”?

The Council on Environmental Quality has released it guidance on “Improving the Process for Preparing Efficient and Timely Environmental Reviews under the National Environmental Policy Act.” As far as I can tell, the guidance provides literally nothing on improving the process. It is instead a compendium of how wonderful the process already is in allowing and encouraging appropriate flexibility in complying with NEPA. I’m not sold.

In fairness, CEQ has a tough task here. It’s trying to satisfy everyone, including NGOs and environmental justice advocates, as well as project proponents. As I noted yesterday in my post on regulatory reform in Massachusetts, sometimes… More

A Few Small Steps For Regulatory Reform In Massachusetts: MassDEP Releases Its Final Action Plan

paretoYesterday, MassDEP released its Final Action Plan for Regulatory Reform. It pretty consistent with the draft package I summarized last October. There is some good stuff in the package, but it really is baby steps. MassDEP’s own ground rules precluded the adoption of any changes that could not be described as Pareto improvements– If any stakeholder would be made worse off, it just wasn’t going to happen. Thus, MassDEP imposed the following limitations to ensure that the changes would not:

Cost MassDEP money Impose burdens on municipalities Reduce public process Require statutory… More

Shocking News: The D.C. Circuit Court of Appeals Is Not Going to Overturn Massachusetts v. EPA

Since I already violated my rule against speculating on the outcome of a case based on oral argument, I might as well do it again. I have always said that EPA’s endangerment finding would survive judicial review and that conclusion seems only more likely to prove correct following yesterday’s oral argument before the D.C. Circuit Court of Appeals.

Both the Daily Environment Report and GreenWire noted in their reporting on the argument that the groups challenging the rule emphasized that EPA had not considered the policy implications of making the endangerment finding. Of course. Precisely. That’s because the Clean Air… More

EPA Issues Step 3 of the Tailoring Rule: Did Anyone Hear the Tree Fall?

On Friday, EPA released “Step 3” of the GHG Tailoring Rule. The big news is no news at all. EPA left the GHG permitting thresholds unchanged, at 100,000 tons per year of carbon dioxide equivalent for new facilities and increases of 75,000 tpy of CO2e for existing facilities. In a phrase repeated in EPA’s fact sheet, keeping the thresholds unchanged is part of EPA’s “common sense … approach” to GHG permitting.

The proposal does include two options to allow GHG sources to streamline permitting, both of which may be of real value to some sources:

Provisions to “improve the usefulness of… More

Obama Budget Would Cut Superfund by 6%: How About A New Approach?

According to a report in yesterday’s Greenwire, President Obama’s proposed budget would reduce Superfund spending by 6%, from $565 million to $532 million. I still don’t understand why Obama, particularly with Cass Sunstein still at OMB, hasn’t turned this problem into an opportunity. I know I’ve flogged this one before, but a significant part of the explanation for the size of the Superfund budget is related to CERCLA’s status as the last bastion of command and control regulation. Everyone who practices in this area could provide endless examples of the almost unbelievable extent of micromanaging indulged in by EPA and its… More

EPA’s Risk Assessment Machinery Grinds Exceedingly Slowly, but PCE is Now a Likely Human Carcinogen

On Friday, EPA finally issued its long-awaited revised risk assessment for tetrachloroethylene, also known as perc or PCE. EPA also issued a fact sheet summarizing its current views about PCE and how the new risk assessment fits into the Clean Air Act, Safe Drinking Water Act, and CERCLA regulatory regimes.

Because PCE is present at so many Superfund Sites, and given the number of dry cleaners – including many in residential areas – still using PCE, EPA seemed to go out of its way to minimize the significance of the new risk assessment. Among the points it made:

Having ones… More

Does Energy Efficient Technology Make Buildings More Energy Efficient? The Answer May Not Be So Obvious

ClimateWire had a fascinating story on Monday about federal efforts to increase the energy efficiency of buildings, which are estimated to consume about 40% of our nation’s energy. The story concerns the less than inspiringly-named Greater Philadelphia Innovation Cluster for Energy-Efficient Buildings, which is seeking to substantially alter how building owners think about energy efficiency and the use of technology.

The problem facing GPIC, as it is known, is one with which I confess I was not familiar. According to the statistics from the Energy Information Administration:

Over the past 20 to 30 years, every… More

One Small Step Forward For Mid-Atlantic Offshore Wind Development

offshore-wind-power-7259Yesterday, the Bureau of Ocean Energy Management issued a notice of availability for the Environmental Assessment it prepared in connection with the issuance of leases for wind energy development off the coast of New Jersey, Delaware, Maryland, and Virginia. The EA includes a Finding of No Significant Impact, or FONSI. In other words, BOEM concluded that the issuance of leases does not require a full blown Environmental Impact Report.

The EA also addresses the individual site assessment plans, or SAPs, that will have to be performed by… More

Utility MACT and Reliability: One More Brief Post

When I last posted on the potential impact of the Utility MACT rule on electric system reliability, I swore I was done with the subject. I knew then it was probably a mistake. Yesterday, FERC announced that it has issued a White Paper on how it will respond to requests by generators to EPA for an extension of time to comply under the Utility MACT rule. Since FERC has invited comments on the White Paper, it seemed worthy of note.

As those who have followed the progress of the MACT rule know, EPA has allowed a basic compliance period of… More

RGGI Makes Some Changes, But Not the Overall Cap. Yet.

The nine states still participating in the Regional Greenhouse Gas Initiative are getting ready for the first auction of RGGI’s second compliance period, scheduled for March 14th.  In the auction notice released last week, they announced 4 changes to the program, and analysts are predicting there are far more significant changes to come — namely adjustments to the total emissions cap. 

The first change: which we knew was coming; New Jersey is officially out.  The second:  the reserve price, the lowest price at which allowances may sell, has been increased by 4 cents to $1.93, in line with… More

Do We Need the Precautionary Principle To Protect Us From Potential Risks From Nanotechnology? The NRDC Thinks So

nanosilverIn a prior rant, I raised the concern that EPA would oppose the use of new cleanup technologies based on nanotechnologies on the basis of the precautionary principle. I may not have been exactly on the mark, but I was pretty close. On Thursday, the NRDC announced that it has filed suit challenging EPA’s decision to issue a conditional registration of a nanosilver-based antimicrobial agent. The NRDC asserts that EPA’s use of the conditional registration process is “illegal,” apparently because EPA does not have sufficient information to justify a conclusion that use… More

Lisa Jackson Says Public Pressure Will Clean Up Fracking. Really.

According to E&E News, Lisa Jackson said Friday that public pressure, not EPA regulation, will clean up fracking. 

Fracking fluids will get greener, water use will get down, all because the industry, quite frankly, will do it, must do it, and will feel the public pressure — not the EPA pressure — to do this in a responsible way.

Does she really mean it? Notwithstanding current pronouncements by the GOP Presidential candidates, neoclassical economics has a clear role for government regulation. If economic activity – such as fracking – imposes costs on society that are… More

This Just In: EPA’s Utility MACT Rule Will Not Cause the Lights to Go Out.

As readers of this blog know, the impact of EPA air rules, including in particular the Utility MACT rule, on the reliability of the nation’s electric grid has been the subject of much speculation. Last week, the Congressional Research Service weighed in, with the exciting headline: EPA’s Utility MACT: Will the Lights Go Out?” Of course, notwithstanding the sexy title, the CRS conclusion can be summarized pretty simply: the MACT rule will not cause the lights to go out. Money quote:

although the rule may lead to the retirement or derating of some facilities, almost all of the capacity reductions will occur in areas… More

Is Massachusetts the NIMBY Capital of the World? What Will Be the Impact of the Wind Turbine Health Impact Study?

Yesterday, the “Independent Expert Panel” convened by MassDEP to review whether wind turbines cause any adverse health effects issued its report. I was pleased that the headline in the Boston Globe was that “Wind turbines don’t cause health problems.” Similarly, the Daily Environment Report headline was that “Massachusetts Study Finds ‘No Evidence’ of Health Impacts from Wind Turbines.” 

I hope that that’s the way the report will be read, but I’m worried. Perhaps I just have too many NIMBY-related scars. Whatever the reason, I am worried about the report’s statements that there

is limited epidemiologic evidence suggesting an association between exposure… More

For Those of You Who Cannot Get Enough About Sackett

Just in case you are not sated with coverage about the Supreme Court argument in Sackett and the potential implications if EPA loses, I thought I would note that I did a brief (8 minutes) interview with LexBlog Network about the issues it presents. You can see it here

More on the Frontlines of Adaptation

Last Friday, noting a story about the extent to which concerns about sea level rise from climate change might affect development in East Boston, I wondered whether battles over whether and how to adapt to climate change might be moving from the realm of the hypothetical to the realm of the real. Climate Wire has now begun a series of stories on how cities are planning for climate change. This week, there have been stories about Portsmouth, New Hampshire, and Hallandale Beach, Florida

The long-term picture in these cities is no prettier than that of East Boston. The specifics don’t… More

Is the Bell About to Toll on EPA’s Enforcement Order Authority? The Supreme Court Hears Oral Argument in Sackett

I am generally loath to speculate about what the Supreme Court will do based on oral argument, but the overwhelming reaction to the oral argument in Sackett v. EPA was that EPA is going to lose. What would a loss mean? In simplest terms, EPA would no longer be able to issue enforcement orders under the Clean Water Act without those orders being subject to judicial review. Such a decision would undeniably be significant. Everyone practicing in this area knows how coercive EPA enforcement orders can be. A person who thinks that he is not liable or that the order is inappropriate, and… More

Has the Battle Begun? A Look at One of the Front Lines of the Adaptation Issue

A story in today’s Boston Globe makes clear that, at least in states where it is permissible to use the words “climate” and “change” in the same sentence, the battle over adaption may no longer be hypothetical. The neighborhood known as East Boston is one that might appropriately be described as having unfulfilled potential. Last month, at a Chamber of Commerce breakfast, Mayor Menino pledged to revive East Boston, specifically calling out five projects that have been on the drawing board for some time.

So what’s the problem? The problem is that East Boston is a waterfront community. Indeed, arguments have long… More

Yes, Virginia, the Burden of Proof Does Matter

The decision yesterday in United States v. Minnkota Power Cooperative serves as a useful reminder regarding how important the burden of proof is in review of agency decisions. The case started in 2006, as part of DOJ’s NSR enforcement initiative, when the United States and North Dakota brought suit against Minnkota’s Milton R. Young Station. The parties settled and a consent decree was entered. Apparently, the parties knew at the time of the settlement that there would be a dispute regarding what would constitute BACT for NOx control and they thus agreed to defer… More

Will Slow But Steady Win the Race? Cape Wind Clears One More Hurdle

The Massachusetts Supreme Judicial Court today affirmed the decision by the Department of Public Utilities to approve the power purchase agreement, or PPA, between Cape Wind and National Grid. (Full disclosure: Foley Hoag represented the Department of Energy Resources in support of the contract before the DPU.) The decision doesn’t mean that Cape Wind will now get built. Given the (one hopes) temporary problems with the federal loan guarantee program and Cape Wind’s failure thus far to sell the rest of the power from the project, the SJC decision is more of a necessary than sufficient condition to construction.

On the… More

MassDEP Issues Vapor Intrusion Guidance: Don’t Worry; It’s Only Guidance

Last week, MassDEP finally issued its long-awaited vapor intrusion guidance. Including appendices, it is 148 pages. There is a separate 52-page response to comments on the draft guidance. MassDEP has certainly learned that guidance must at least be described as guidance. The disclaimer runs a full page, and includes the following text:

MassDEP generally does not intend the guidance to be overly prescriptive. Use of such words as “shall,” “must,” or “require,” however, indicates that the text is referring to a specific regulatory and/or statutory requirement, rather than a suggested approach and/or optional measure. Use of the words “should” or “recommend” indicates… More

EPA Promulgates The Utility MACT Rule: The World Has Not Yet Come to an End

On Wednesday, EPA promulgated the final Utility MACT rule. I doubt that anyone reading this blog isn’t already aware of the big news.

As seems frequently to be the case with EPA rules, this one, weighing in at 2.4MB and 1,117 pages, cannot easily be summarized here. In fact, the rule is so complicated – and controversial – that EPA had to generate four separate fact sheets to summarize the rule and its impacts: (1) Costs and Benefits (or, as EPA carefully puts it, “Benefits and Costs”); (2) Summary of the Rule; (3) Clean Air and Reliable Electricity (I… More

Words Matter in Environmental Cleanup Standards

In New York State Superfund Coalition, Inc., v. New York State Department of Environmental Conservation, the highest court in New York recently put its own gloss on the long-standing environmental issue of “How Clean is Clean”. There, the court held that, even though liability for cleanup under New York’s state Superfund statute is triggered when there is a “significant threat” to the environment, the state has authority to promulgate regulations requiring cleanup beyond what would be necessary to eliminate that significant threat. Specifically, the Court affirmed regulations that require cleanup to “pre-disposal conditions, to the extent feasible”.

The court… More

Strike Two Against the NAHB: They Lose Another Standing Battle

Last week, I noted that the D.C. Court of Appeals had found that the National Association of Home Builders did not have standing to challenge a determination by EPA and the Army Corps of Engineers that two reaches of the Santa Cruz River are traditional navigable waters. On Friday, in National Association of Home Builders v. United States Army Corps of Engineers, the NAHB lost yet another standing battle.

This time, the NAHB was challenging the Corps’ nationwide permit, NWP-46, allowing discharges of dredge and fill material into certain upland ditches. The District Court had found that the NAHB… More

EPA Further Delays Issuance of Post-Construction Stormwater Regulation Proposal; Contractors and Developers Are Distraught (Not!)

Those following stormwater issues know that EPA is overdue to promulgate a proposed rule for stormwater controls at post-construction sites. The rule has been extremely controversial, with groups such as the Associated General Contractors arguing that EPA has no authority to promulgate post-construction rules. EPA was originally scheduled to issue the proposed rule by September 30. When EPA couldn’t meet that deadline, it negotiated an extension until December 2 (while stating that the deadline for the final rule, November 19, 2012, would still be met). Well, it’s December 15, and no proposal has been issued.

E&E Daily has now reported that, in… More

Can Coal’s Friends in Congress Save It? Goldman Sachs Isn’t So Sure

Market-watchers thinking that having friends in Congress means that coal can flourish despite EPA regulation on many fronts may have a different view to ponder. Goldman Sachs predicted last week that generators will continue to switch from coal to natural gas and downgraded the prospects of the coal industry from “attractive” to “neutral.” Specifically, Goldman predicted that 51 GW of coal electric generating capacity are on their way out and that EPA Cross State Air Pollution Rule, or CSAPR, and utility MACT rule would together eliminate 160 million tons of coal production through 2018. Political winds may shift direction periodically, but cold-blooded… More

Sauce For the Goose? Home Builders Lose a Standing Battle

Developers have cheered in recent years as the Supreme Court has tightened its standing rules. In a decision issued on Friday in National Association of Home Builders v. EPA, the Court of Appeals for the District of Columbia may have hoist the developers on their own petard.

After EPA and the Army Corps of Engineers issued a determination that two reaches of the Santa Cruz River constitute “traditional navigable waters” under the Clean Water Act, the National Association of Home Builders sued. The complaint appears to have attached declarations referring to individuals who own property along tributaries of the two… More

EPA Compromises (Again) on the Boiler Rule: Will It Get Any Credit?

On Friday, EPA proposed certain revisions to its rule on air emissions from boilers and commercial and industrial solid waste incinerators (CISWI). As with other major rules under development in the past few years, EPA has taken fairly substantial steps to limit the reach of the rule to those boilers and CISWI that are of greatest concern. Without engaging in formal cost-effectiveness analysis, EPA has sought to make the rule as cost-effective as possible.

As with most of EPA’s big rules, it is too complex to be summarized in a blog post. EPA’s summary fact sheet is here. Very briefly, the rule… More

Reliability Concerns? NERC Says Yes; EPA Blasts Flawed Assumptions

Yesterday, the North American Electric Reliability Corporation, or NERC, released its 2011 Long-Term Reliability Assessment. The NERC report identified environmental regulations as one “of the greatest risks” to reliability. Much of the focus of the concern was on EPA’s MACT rule for hazardous air pollutants and its 316(b) rule for cooling water intake structures. While expressing uncertainty about these not-yet finalized rules, the NERC report took an extremely cautious approach, largely assuming the worst in terms of the stringency and inflexibility of these rules.

Appropriate caution? Not according to EPA.

In a letter to NERC, EPA Deputy Administrator Bob Persciasepe accused NERC… More

Will EPA’s “Train Wreck” Affect Reliability? At Least One FERC Commissioner Is Still Concerned

There has already been significant attention devoted to whether EPA’s “train wreck” of rules affecting coal-fired power plants would affect electric system reliability. The Congressional Research Service analysis looked at the coming rules more broadly, but did touch on reliability, noting that most of the coal plants likely to be retired as a result of EPA regulations are small and inefficient, and already run infrequently. As we noted last June, the Bipartisan Research Center did focus on reliability, concluding “that scenarios in which electric system reliability is broadly affected are unlikely to occur.”

However, this work has not been… More

The Economics of RGGI: A Net Positive, Particularly For New England

With the first compliance period in the Regional Greenhouse Gas Initiative (RGGI) coming to a close in December, it seems an appropriate time to look back at what we can learn from the country’s first market-based program aimed at reducing emissions of carbon dioxide from power plants. A report released Tuesday by the Analysis Group analyzed the economic impacts of RGGI – how the program impacted electricity prices, power producers’ costs, and consumers’ electric bills, and what effect the millions in quarterly auction proceeds has had, and will have, on the region’s economy.

The report does not try to… More

Dog Bites Man: Environmental Impact Edition

Casablanca36Earlier this week, Greenwire noted a Los Angeles Times story reporting that businesses are using the California Environmental Quality Act – California’s version of NEPA – as a tool of economic competition, trying to kill or delay projects for economic reasons. Much like Claude Rains, I am shocked, shocked, to find that there is strategic litigation going on here. In the past two years, I have defended multiple court cases and administrative hearings brought by a 10-citizens group against one particular client. Many of those claims have been premised on our… More

Go Ahead and Destroy the Environment; NEPA Won’t Stop You

Strawberry CanyonIt is, as the lawyers say, black letter law that the National Environmental Policy Act, or NEPA, is a procedural statute, which provides no substantive protection to the environment. It merely requires the appropriate level of assessment of the potential environmental consequences of federal action. Whether the action should be taken is outside NEPA’s purview.

Rarely, however, has this critical limitation on NEPA’s scope been stated so plainly as in yesterday’s decision in Save Strawberry Canyon v. U.S. Department of Energy, in which Judge Alsop of the Northern District of California… More

Jack-Booted Thugs — You Know Who You Are

Two seemingly unrelated stories from last week suggest that EPA may have its limits in how far it is going to go to make nice with those who are opposing its regulatory agenda. The first story, reported by Greenwire, is pretty much all in the headline: “EPA official accuses Kan. department of lying over proposed plant.” The second story, also from GreenWire, reported that EPA Administrator Lisa Jackson referred to opponents of EPA’s greenhouse gas tailoring rule as “jack-booted thugs.”  She has also described Republican efforts to limit EPA regulatory authority as a “too dirty to fail” policy.

It’s difficult… More

Building Efficiency — Everyone Is In Favor, But How Do We Get There?

Yesterday, the Daily Environment Report noted the formation of the Coalition for Better Buildings, or C4BB, an alliance of environmental, business, and real estate interests intended to increase the incentives to make buildings more energy-efficient. Its members include real estate trade groups such as the Real Estate Roundtable and the Building Owners and Managers Association, as well as some heavyweight companies, such as Vornado. It also includes environmental groups such as the NRDC and companies who will look to profit from investments in building efficiency, such as Siemens and Johnson Controls.  

The C4BB’s mission is to:

Propose policy solutions from… More

MassDEP Issues Its Regulatory Reform Proposal

Earlier this week, the Massachusetts DEP issued a package of regulatory reforms. While the focus of the package was on finding ways for MassDEP to implement its mission with fewer resources, a number of the reforms are specifically targeted at facilitating the development of renewable energy. If you want to see more about that angle, you can take a look at our client alert about the reforms.

On the non-energy side, my personal favorite is MassDEP’s expressed willingness to review the role of its hazard ranking system in the state Superfund, or Chapter 21E, program. Given the way the 21E program… More

Who’s Afraid of Cost-Benefit Analysis?

Cost Benefit Analysis(1)E&E Daily reported this week that Congressional Democrats are opposing the Regulatory Accountability Act of 2011. H.R. 3010 would codify a requirement for cost-benefit analysis of major regulations in the Administrative Procedures Act. According to the report, John Conyers, ranking member on the House Judiciary Committee stated that the RAA

would amend the Administrative Procedure Act in ways that would effectively halt agency rulemaking and undermine public health and safety rules.

Excuse me?

The guts of the RAA would be to:

Require cost-benefit analysis for all rules expected to cost… More

EPA Loses Another One: Enhanced Mountaintop Mining Reviews Struck Down

As part of its efforts to control the impact of mountaintop removal mining, EPA has implemented a number of changes – both procedural and substantive – into how § 404 permit applications for such activities will be reviewed. None of these changes have gone through notice and comment rulemaking. As we previously noted, Judge Reggie Walton already expressed skepticism about EPA’s mountaintop removal guidance. Last week, in the latest decision in National Mining Association v. Jackson, Judge Walton shot down EPA’s “Enhanced Coordination Process”, or ECP, for reviews of section 404 permit applications.

Although… More

EPA Loses a PSD Enforcement Case — Big Time

EPA may have had problems in court in recent years defending its regulations, but it has generally fared much better in its enforcement cases. Earlier this week, however, EPA suffered what will be, if it is affirmed, a devastating defeat in its PSD/NSR enforcement initiative. In United States v. EME Homer City Generation, Judge Terrence McVerry concluded that the government could get no relief against either the former owners of the facility or the current owners or operator. No penalties. No injunctive relief. No relief under state law. Nothing. Nada.

The facts here were typical of NSR enforcement cases. The facility, in Homer City, Pennsylvania, had implemented… More

Yet More Citizen Suits on the Way? EPA Again Upgrades the ECHO Data Base

As some of our clients know all too well, I am spending much time these days defending citizen suits. As federal and state agency budgets get slashed, we’re only going to see more such suits, unless a Tea Party-controlled Congress amends the relevant statutes to cut back on citizen suit provisions. 

In a move that will facilitate citizen enforcement, EPA announced last week that it has yet again upgraded its Enforcement and Compliance History Online, or ECHO, data base. As Cynthia Giles, EPA’s Assistant Administrator for Enforcement said:

EPA is committed to providing the public with easy to use tools… More

Inspector General’s Evaluation of EPA’s Endangerment Finding: Form over Function?

As Greenwire reported, the Inspector General of the EPA recently released a report criticizing how the agency followed (and deviated from) procedures in publishing the Technical Support Document that underpinned its December 2009 Endangerment Finding.  The IG was instructed to conduct this review at the order of Senator Inhofe (R-OK), the ranking Republican on the Senate Committee on Environment and Public Works.  The review, which cost nearly $300,000, examined only whether EPA followed its own procedures and those of the Office of Management and Budget (OMB), and did not analyze the validity of the scientific or technical information used… More

Coming Soon to Massachusetts: Adaptation to Climate Change

The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government; and Coastal Zone and Oceans.

Certainly, the summary of potential impacts in Massachusetts is not a pretty picture – speaking metaphorically, anyway; many of the pictures in the report actually are pretty cool. For those… More

EPA Issues Its Environmental Justice Plan: Words (Almost) Fail Me

Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to analyze the issue to be stunning.

I also still think that my simple analysis from last year is not too simplistic. Here’s the way EPA’s job is supposed to work:

Congress passes environmental protection laws for EPA to implement. Those statutes generally provide for… More

Score One For Affordable Housing: Chapter 40B Trumps Vague Local Environmental Concerns

In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area know, Chapter 40B consolidates all local permitting before the zoning board of appeals. The board can deny permits based on local needs, but there is a presumption that the need for affordable housing trumps local needs if the stock… More

One More Ozone Post: Who Will Act First, EPA or the Courts?

roseanne roseannadannaFollowing EPA’s decision last week to scrap its reconsideration of the 2008 ozone National Ambient Air Quality Standard, the parties to the litigation challenging the 2008 standard are back in court. This week, EPA submitted a brief to the Court of Appeals, which was pretty much a six-page version of Roseanne Roseannadanna’s “Never mind.” After telling the Court for years that it should defer to EPA’s reconsideration process – a decision on which was always just around the corner, until EPA decided it wasn’t – EPA has… More

Thirteen Proves to Be A Somewhat Unlucky Number for RGGI

The Regional Greenhouse Gas Initiative (RGGI) celebrated its third anniversary by holding its 13th quarterly auction of carbon dioxide allowances on Wednesday.   As today’s Market Monitor report highlights, although the number of bidders was up, the percentage of allowances purchased was down.  Thirty-one bidders purchased just under 18% of the 42,189,685 current compliance period allowances offered for sale by the 10-state group (including New Jersey).  These allowances, with vintage dates from 2010 and 2011, can be used by electric generators in the current compliance period, which will end in December.  The previous low for demand for these allowances dates… More

I’m As Mad As H___ and I’m Not Going To Take It Anymore: Massachusetts Historic Commission Edition

Last week, SouthCoastToday and the Herald News both reported that a large expansion by Meditech of its facility in Freetown was on life support, after the Massachusetts Historical Commission required Meditech to strip the top two feet of soil from 21 acres and sieve it for archeological artifacts, at a projected multi-million dollar cost. The Herald News quoted various local leaders calling the MHC’s decision “incomprehensible…arbitrary…bizarre… and unacceptable.” What they did not point out, and what is even more troubling than just the decision here, is that the best description of the MHC action is simply this: business as usual.

It’s… More

The Wheels of EPA’s Ozone Reconsideration Have Stopped Grinding Completely: Obama Tells EPA to Stop

Yesterday, in commenting on the court battle over EPA’s reconsideration of the ozone NAAQS, I said that I would be surprised if EPA doesn’t issue the new standard within six months. Oops. My bad. Today, President Obama directed EPA to give up on the reconsideration effort. It’s difficult not to be cynical about the White House decision. As much as I admire Cass Sunstein, his letter to EPA providing the basis for the White House decision is not persuasive. Basically, it makes two points. 

First, EPA has to review the NAAQS every five years. Since this cycle began in 2008, EPA would have to… More

The Wheels of EPA’s Reconsideration of the Ozone Standard Grind Slowly — Time Will Tell How Finely

This week, EPA filed a brief with the D.C. Circuit Court of Appeals, arguing that, notwithstanding its fourth delay in issuing a decision on its reconsideration of the NAAQS for ozone, the court cannot and should not order EPA to issue a decision. Industry shouldn’t get too excited, however. In the same brief, EPA telegraphed pretty clearly, consistent with its 2010 proposed rule, that it remains on track to significantly decrease the ozone standard from the 0.075 ppm standard promulgated by the Bush administration in 2008.

As most readers know, the Bush standard was higher than that suggested by EPA’s own… More

The Pudding Tastes OK, But It’s Not the Treat It Could Be: EPA Issues Its Final Regulatory Review Plan

When EPA issued its preliminary plan in May for review of its regulations, I said that the proof would be in the pudding. Well, EPA has now issued its final plan. My review? The pudding tastes ok, but it doesn’t taste as good and it’s not as filling as it could be.

My major complaint with the preliminary plan was its failure to target the single biggest area for reform – those areas where EPA still relies on command and control regulation. Obviously, statutes dictate EPA’s approach in many cases, but not all. There is much more friendly generic language on this… More

MEPA Case Law: A Lose-Lose Proposition

Yesterday, the SJC issued its eagerly awaited decision in Ten Persons of the Commonwealth v. Fellsway Development. I think that the SJC probably got it right. It says something about MEPA jurisprudence, however, that the decision is good for neither citizen plaintiffs nor for developers. I’d suggest that the legislature go back to the drawing board, but it won’t happen and, if it did, I wouldn’t trust the legislature to get it right.

Fellsway Development involves an proposed development within the Middlesex Fells Reservation. After running into certain obstacles, the developers reconfigured their project to avoid the… More

Where You Stand Depend on Where You Sit: Utility MACT Edition

As the deadline passed last week for submitting comments on EPA’s Utility MACT rule, it’s worth taking a big picture look at how the commenters line up. Big utility groups, such as the Edison Electric Institute and the American Public Power Association are looking for EPA to delay the rules. The basic argument is that it is going to take a long time to comply. EEI states that so many facilities will require extensions that the number of requests will create a backlog that will itself essentially create compliance problems.

However, it is not just environmental and public health… More

Carbon Capture & Seriously Need a Price on Carbon Emissions

The Environmental Protection Agency proposed a rule yesterday that would exempt carbon dioxide injected into underground carbon capture & storage (CCS) wells from regulation as hazardous waste, so long as the CO2 is held in wells designated for that purpose under the Safe Drinking Water Act.  In its press release announcing the program, EPA noted that the purpose of the regulation — as well as its prior rulemakings under the Clean Air Act to require emissions reporting by CCS facilities, and the Safe Drinking Water Act to require appropriate siting, construction and monitoring of CCS wells — was… More

The Conservation Commission That Couldn’t Shoot Straight

It’s easy enough to complain about EPA; I’ve even been known to do it on occasion. However, in Massachusetts, we have a different problem. We let local municipalities regulate all sorts of matters in which they have no expertise.  We even delegate to municipalities the implementation of our state Wetlands Protection Act. That’s how we end up with cases such as Lippman v. Conservation Commission of Hopkinton. Lippman didn’t make any new law, but it does illustrate what havoc local boards can wreak. 

The Lippmans wanted to build a single family house on land subject to the WPA. They… More

How Many Miles Per Gallon Does Your Building Get? The Ratings Game Comes to Buildings

According to EPA, buildings account for 36 percent of total energy consumption and 65 percent of electricity consumption in the United States. In the absence of comprehensive legislation that would put a price on carbon, which would give building owners direct incentives to implement cost-effective efficiency measures, a number of jurisdictions have started looking into and in some cases implementing requirements that at least commercial buildings be subject to energy efficiency ratings.

Last week, the Institute for Market Transformation (now isn’t that a name to put fear into the hearts of Tea Party members) released a report on… More

Among Cap and Trade, RES, and CES, Which Would Work Best? The One That’s Not Currently Under Consideration

After the death of Waxman-Markey, and given the current political climate, cap and trade is the Legislation Which Shall Not Be Named. Instead, there is discussion of either a renewable electricity standard (RES) or clean electricity standard (CES), and the talking points for supporters concern energy security and the growth of a clean energy economy, not climate change (also known as the Reality Which Shall Not Be Named).

Either an RES or an CES would spur use of alternatives to fossil fuels in electricity generation and would… More

The Battle Over Guidance Is Joined Again: EPA Finalizes Its Mountaintop Removal Guidance

mountain_topThe fight about guidance and rules is in the news again. Yesterday, EPA finalized its guidance on Clean Water Act permitting with respect to mountaintop mining. As most of our readers know, EPA issued Interim Guidance in April 2010. In January 2011, in National Mining Association v. Jackson, Judge Reggie Walton, while denying plaintiff’s preliminary injunction, signaled that he thought that EPA’s Interim Guidance probably was a legislative rule that should have gone through notice and comment rule-making.

Judge Walton’s decision did not deter EPA, which finalized… More

AEP Pulls the Plug on CCS

Last week, AEP announced that it was putting on hold its plans to develop commercial scale carbon capture and storage technology at its Mountaineer plant in New Haven, West Virginia. As explanation, AEP cited the uncertain status of U.S. climate policy. More specifically, AEP CEO Michael Morris noted that it is difficult to get regulatory approval to recover CCS capital costs until GHG reductions are required. 

Well, duh. 

It’s understandable that, in a world where putting a price on carbon emissions has become The Policy Which Shall Not Be Named, those who are trying… More

EPA Is Required to Make An Endangerment Finding Concerning Airplane Engines

Last week, in Center for Biological Diversity v. EPA, Judge Henry Kennedy reminded us that, in thinking about whether the existing Clean Air Act requires EPA to address climate change, the actual words of the statute matter. The scope of the climate problem does not obviate the need to parse individual provisions of the CAA and Massachusetts v. EPA did not resolve all issues. 

CBD petitioned EPA to regulate GHG emissions from nonroad engines and vehicles, under § 213 of the CAA, and from aircraft engines, under § 231 of the CAA. EPA did issue advanced notices of proposed rulemakings… More

EPA Finalizes the Cross-State Air Pollution Rule: Who Needs CAIR or the Transport Rule?

Yesterday, EPA finalized the Cross-State Air Pollution Rule, or CSAPR, which was the Transport Rule, which had been the Clean Air Interstate Rule. (EPA must have decided that CSAPR results in a more mellifluous acronym.)

The rule is almost too big to describe, except in its broadest terms. EPA has provided a summary of costs and benefits, but even EPA’s summary does not really explain how the rule will be implemented.

The rough numbers at least give some idea of the scope of the rule and the problem it is addressing. EPA estimates that the rule will reduce SO2 emissions by… More

Perhaps the Justices Just Don’t Like GE: The Supreme Court Grants Certiorari to Review EPA’s Clean Water Act Order Authority

As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining… More

Important Decision; No Surprise — The Supreme Court Bars Federal Climate Change Nuisance Claims

Yesterday, the Supreme Court announced its decision in American Electric Power v. Connecticut, holding that EPA’s authority to regulate greenhouse gases under the Clean Air Act displaced federal common law nuisance claims. I have always thought that the displacement argument was correct, so the decision is not really a surprise (and the 8-0 decision and crisp opinion only confirm that view). The decision is nonetheless important and, notwithstanding a few limitations, rather sweeping.

The Court’s analysis was straightforward. The creation of federal common law by courts is “unusual” and

[W]hen Congress addresses a question previously governed by a decision… More

Judicial Restraint in NEPA Cases: How Many Judges Allow “Unwise” Agency Action?

This week, in Webster v. USDA, Judge John Bailey of the Northern District of West Virginia rejected a challenge to the Environmental Impact Statement filed for a USDA flood control project. The decision is not particularly startling and does not break new ground, but it does serve as a reminder just how limited judicial review under NEPA is supposed to be – and just how often that limitation is honored only in the breach, by judges who don’t like particular projects or don’t want to be known as the judge who approved a particular project if something later goes wrong.

More

This Week’s Air/Climate Smorgasbord

After a relatively quiet period, there were a number of items of interest on the air/climate front this week. First, AEP announced that upcoming pollution controls would result in shutting down 6,000 megawatts of coal-fired capacity, or 25% of its coal fleet. AEP also announced that it would spend $6 billion to $8 billion in bringing the rest of its fleet into compliance.

On the flip side of this issue, the Bipartisan Policy Center issued a report concluding that compliance with the various EPA rules in the works (Clean Air Transport Rule, Utility MACT Rule, coal combustion ash rule, Clean… More

RGGI Auction #12: Demand Crashes, 70% of Current Allowances Go Unsold

Demand for allowances in the nation’s only cap-and-trade program for carbon dioxide emissions fell sharply last week.  At the 12th Quarterly Auction of the Regional Greenhouse Gas Initiative (RGGI), held on June 8th,  70% of the current compliance period allowances went unsold.  As the RGGI Market Monitor Report highlights, with only 25 bidders participating in the auction of the 2009-2011 compliance period allowances, only 30% of the 42 million allowances offered for sale by the 10-state group (including New Jersey) were actually purchased at the floor price of $1.89.  Demand for future allowances, good for the 2012-2014 compliance period,… More

Can We Balance the Environmental Costs and Benefits of Potentially Hazardous Chemicals?

Only this week did I catch up to a letter to HHS Secretary Sebelius by more than 60 members of Congress asking that HHS perform further review of the National Toxicology Program’s 12th Report on Carcinogens before it is formally released. The specific concern is the conclusion in the draft RoC that styrene is “reasonably anticipated to be a carcinogen.” I readily confess that I don’t know enough about styrene to have a view whether the draft’s conclusion is appropriate. 

According to the Congressional letter, styrene has many important uses, including a number… More

CERCLA Is Still – Still – Constitutional

As much as I’ve always found EPA’s use of unilateral administrative orders under Section 106 of CERCLA to be offensive, I still expected EPA’s authority to withstand challenge. As I noted previously, not every law that is unfair is unconstitutional. At least for now, the issue has probably been laid to rest. Yesterday, the Supreme Court denied GE’s petition for certiorari seeking to appeal the D.C. Circuit’s rejection of its claim that EPA’s exercise of its unilateral order authority is unconstitutional.

CERCLA has been constitutional for almost as long as Francisco Franco has been dead – and they’re… More

EPA Wants to Take More Than One Year to Decide on a Clean Air Act Permit? How Absurd!

The uncertain and often lengthy time to get permitting decisions is always near the top of the list of industry complaints. Section 165 of the Clean Air Act provides some relief by requiring certain permit decisions to be made within one year. Last week, in Avenal Power Center v. EPA, District Judge Richard Leon, in what may comfortably be described as a strongly-worded opinion, held that EPA may not circumvent the one-year limit on permit decisions by carving out from the one-year period the time spent by the Environmental Appeals Board reviewing EPA’s permit decision.

In March 2008, Avenal Power… More

The Proof Will Be in the Pudding: EPA Releases Its Preliminary Plan For Review of Existing Regulations

When President Obama issued Executive Order 13,563, on Improving Regulation and Regulatory Review, it was not obvious whether the Order was simply an attempt to protect the President’s right flank or whether the agencies would respond substantively. Yesterday, EPA released its Preliminary Plan for Periodic Retrospective Reviews of Existing Regulations. Initial review of the Plan suggests that EPA has taken the task seriously and has made some constructive suggestions. To me, however, they missed the elephant in the room and therefore cannot be given better than a B grade at this point.

There is a lot of good… More

Intervenors Have Rights, Too: The First Circuit Blocks a Settlement Under the Telecommuncations Act

In an interesting decision issued late last week in Industrial Communications and Electronics v. Town of Alton, the First Circuit Court of Appeals held that private citizens who had intervened to defend a local zoning limit on cell tower height could continue to do so, notwithstanding that the cell tower provider and the municipal defendant were prepared to settle the case. 

Industrial Communications sought to build a 120’ cell tower in Alton, New Hampshire. The Local zoning by-law would have limited the tower to 71’. The Town’s Zoning Board denied a variance. Industrial Communications did not appeal the… More

Almost-Final: Massachusetts’ Biomass Regulations

Late last week, the Massachusetts Department of Energy Resources (DOER) filed with the Joint Committee on Telecommunications, Utilities, and Energy of the state legislature proposed final amendments to the Renewable Portfolio Standard (RPS) regulations governing the eligibility of woody biomass facilities and fuels to qualify to earn renewable energy credits (RECs).  DOER originally issued a draft of these regulations in September 2010, and made revisions after receiving written comments and holding 2 public hearings.  In addition to the revised regulations, DOER issued a regulatory package containing two sets of guidance in the forms of Excel spreadsheets, the More

A Quid Without a Quo? Massachusetts Towns May Not Condition Subdivision Approvals On Unrelated Land Donations

Anyone who does development knows the subtle and not-so-subtle quid pro quos that are sometimes exacted by local planning boards. In Massachusetts, a decision issued on Tuesday by the Appeals Court has emphasized that there are limits to what planning boards may require in return for approval of subdivision plans. 

In Collings v. Planning Board of Stow, the developer was seeking to build a subdivision that included a 1,300 foot street ending in a cul-de-sac (known, with more directness, simply as dead-ends when I grew up in New Jersey). The Stow by-law limits cul-de-sacs to 500… More

MassDEP Commissioner Ken Kimmell Wants Regulatory Reform: Do the DEP Employees Want It?

New MassDEP Commissioner Ken Kimmell has launched a regulatory reform effort at DEP. As everyone knows, Ken did an outstanding job as EEA General Counsel and I expect he will be an outstanding DEP Commissioner. I hope he succeeds and I fully support the regulatory reform initiative. However, he does have one major problem – his staff, other than his senior staff, doesn’t believe in it. Street level bureaucracy is not an abstract intellectual concept; it’s something the regulated community deals with every day. When the Commissioner starts rolling out reform initiatives, even if they are protective of the environment, will his staff be on… More

EPA Issues New Rapanos Guidance: Perhaps the Agency Really Is Listening

I posted recently that EPA actually seems to be listening to comments from the regulated community and has changed course in some cases in response to those comments. The release by EPA and the Army Corps yesterday of their long-awaited revised guidance implementing the Supreme Court’s Rapanos decision confirms that EPA is in listening mode. Although I am not normally a fan, this new version seems an appropriate use of guidance.

First, it is not a unilateral effort to expand agency jurisdiction. Instead, it responds to the Supreme Court Rapanos decision. Given the lack of a majority decision, Rapanos certainly left… More

EPA Is Still In Business: Proposes Draft Construction General Permit for Stormwater

For those of you who thought that the sky was about to fall in EPA as part of the budget battle, I’m able to report that EPA survived sufficiently intact to continue to issue new rules. Today, EPA proposed a draft revised construction general permit, or CGP, for stormwater discharges from construction sites disturbing at least one acre (or less, if the project is part of a common development plan that is greater than one acre). The revised CGP would replace the current CGP which is set to expire on June 30. EPA has proposed to extend the current CGP through January… More

The Regulators Really Do Hold the Cards in Massachusetts: DFW’s Priority Habitat Regulations Survive a Challenge

Anyone who has ever tried to challenge a regulation in Massachusetts knows that it is an uphill battle. Just how tilted the playing field is was reinforced late last month in the decision in Pepin v. Division of Fisheries and Wildlife, rejecting a challenge to DFW’s “priority habitat” regulations. The case involves the Eastern Box Turtle, perhaps the most common of state-listed species.

As our Massachusetts readers know, MESA is similar to, but has some significant differences from, the federal ESA. Fundamentally, MESA prohibits taking “endangered” or “threatened” species or species “of special concern.” The… More

The Battle Against Guidance Continues

I’m beginning to feel like a broken record, but the drumbeat of the anti-guidance crowd is not letting up. Earlier this week, the Waters Advocacy Coalition, which is a group of farm and industry trade groups, sent a letter to EPA and the Army Corps of Engineers, requesting that EPA and the Corps withdraw their plan to issue further guidance on the interpretation of “navigable waters” post-Rapanos. It’s not surprising that this group would oppose the guidance. What is most interesting – and persuasive – about the letter, though, is this quote from the draft guidance itself:

the agencies expect that… More

EPA Announces Its Proposed Rule For Cooling Water Intake Structures: Do I Have To Compliment EPA Again?

Earlier this week, EPA announced its long-awaited revised proposal for a cooling water intake structure rule for existing facilities. Praise is much less interesting than criticism, and thus less conducive to entertaining blog posts, but I’m afraid EPA has left me no choice. Within the confines of what the Clean Water Act requires, EPA seems to have gotten this one pretty much right.

EPA has a useful summary of the rule here. I could certainly quarrel with aspects of the rule, but the basic structure makes sense. It applies to facilities that take at least 25% of their water from an… More

With Friends Like These, Cost Benefit Analysis Doesn’t Need Enemies: North Carolina Bars New Regulations Costing More than $500,000

I’ve spent a lot time in this space arguing for increased use of cost-benefit analysis and cost-effectiveness analysis before environmental regulations are promulgated. As difficult as it can be, there’s simply no avoiding it. If we don’t do so explicitly, we do so implicitly – and I vote for explicitness, every time.

The opposition to cost-benefit analysis usually comes from the left, based on concerns that the cost-benefit requirement will hamstring regulators and that the benefits will be understated. The right is normally seen as a fan of cost-benefit analysis.  Now, however, the notion of cost-benefit analysis is being challenged from… More

More on Guidance v. Regulation: With Friends Like This,…

The issue of guidance v. regulation has been in the news a lot recently. Recently, the anti-guidance side got what some might consider unwelcome assistance from John Graham, who reviewed regulations in the Bush White House. Graham was quoted as saying that:

The whole idea of guidance not being a rule — there has to be an arrow shot right through the heart of that. [Congress should pass legislation] to make sure that things that look like a duck and quack like a duck are a duck.

Of course, I agree with John Graham about guidance. The only problem is that most… More

Conventional Pollution Is Still Where It’s At: EPA Releases the Power Plant MACT Rule

If anyone had any doubts about the significance of the conventional pollutant regulations that EPA would be rolling out, even in the absence of a full cap-and-trade program for GHG, Wednesday’s release of EPA’s revised power plant MACT proposal should go a long way towards eliminating those doubts. As most readers know, the rule replaces the Bush-era MACT rule that would have created a trading program.

The rule poses a problem for critics of EPA. While arguments can be made about the feasibility of some of the standards and the cost to comply, they cannot credibly allege that it is a… More

What Does It Take to “Displace” Federal Common Law? The States Have Their Say

Last month, in discussing the Administration’s brief in the American Electric Power case, I praised the nuanced and persuasive approach that the Administration took in seeking reversal of the 2nd Circuit opinion allowing the states’ public nuisance climate litigation to go forward. The states seeking to prosecute the law suit have now filed their brief and it turns out that they also do nuance. I still think that the Supreme Court will reverse, however.

I’m not going to get into the standing issue. I don’t believe that the states should have standing, but… More

While the GOP Attacks EPA, Coal Remains Under Siege

While EPA remains under attack by the GOP-majority House, that doesn’t mean that coal is off the hook. To the contrary, coal remains under attack itself. A number of recent stories demonstrate the multi-pronged effort by those who want to reduce or eliminate use of coal. For example, the Environmental Integrity Project and two Texas-based NGOs just filed suit against the Lower Colorado River Authority’s Fayette Power Project, alleging violations of NSR/PSD requirements and exceedances of particulate limits in the plant’s permit. There is no doubt that there is a concerted effort by NGOs to make life difficult for coal. Thus, even if… More

Federal Agency Adaptation Plans – A New Route for Climate Regulation?

With cap and trade legislation dead in Congress, and the EPA’s greenhouse gas regulations under siege in both the legislature and the courts, the Obama Administration is doing just about the only thing left to address climate change: adapt.

Actually, the science indicates that adaptation will be necessary regardless of how aggressively we are able to reduce greenhouse gas emissions. It’s only a matter of how much adaptation. A recent report by the U.S. Global Change Research Program found that the average air temperature in the continental U.S. has already risen by more than 2ºF over the last 50 years,… More

A Twofer: Indoor Air and Guidance v. Regulation

Vapor intrusion is the issue de jour at federal and state Superfund sites. On the federal side, EPA announced in January that it was considering adding vapor intrusion criteria to its calculation of hazard ranking scores. Frankly, as a concept, it’s hard to dispute. In fact, aside from when actual public water supplies are contaminated, indoor air is probably about the only risk associated with Superfund sites that we should care about. Every analysis EPA has ever done has shown that risks associated with Superfund sites are otherwise overestimated and it is not a cost-effective place to be putting environmental protection dollars. The question… More

The Regulatory Process Works: EPA Promulgates Revised Boiler Rules

As almost everyone knows by now, EPA finally issued its long-awaited final rule on Boilers, Commercial and Industrial Solid Waste Incinerators (CISWI), and Sewage Sludge Incinerators (SSI) yesterday. The rule is too complicated even to summarize here. EPA has a useful fact sheet for that purpose.

I’d like to focus on a few broader issues. The rule has widely been seen as the Obama administration’s first formal acknowledgment of the anti-regulation political climate currently sweeping Washington. Indeed, the Times began its story as follows:

Responding to a changed political climate and a court-ordered deadline, the Obama administration issued significantly revised new… More

Muddling Through: Clean Water Act Edition

Last week, I discussed EPA’s efforts to “muddle through” on climate change in the absence of comprehensive legislation. This week, I think it’s the Clean Water Act’s turn. If there were any regulatory situation which required some serious muddling through at the moment, interpretation of the Supreme Court’s Rapanos decision almost is a match for the current climate mess. As most of my readers know, Rapanos was a 4-1-4 decision which left EPA, the Corps, developers and environmentalists fairly equally perplexed

Most stakeholders have assumed that Kennedy’s concurring opinion, requiring a “significant nexus” between wetlands and traditional navigable waters before those… More

Deja Vu All Over Again: Time For Another Rant About Guidance

As readers of this blog know, the question of guidance v. regulation is one near and dear to my heart. I generally disfavor guidance, because I think it offers none of the protections of the regulatory process and almost none of the flexibility that guidance is supposed to provide. Two issues are of particular concern. First, guidance is not supposed to announce new rules – only clarifying interpretation of existing rules. However, we all know what a slippery slope that can be. Second, notwithstanding the purported flexibility of guidance, how often do regulators on the street – those actually using the guidance, rather than… More

NSPS, CAMR, CATR, BACT, PSD, UGH (The Last One’s Not an Acronym)

Back in my public policy days, there was much discussion of “muddling through.” When I look at recent developments on the climate and air regulation front, I just see a muddle. First, we have Gina McCarthy, saying that EPA wants to walk before it runs, and assuring utility executives that New Source Performance Standards for GHG emissions will not have a “dramatic effect.” McCarthy further said that EPA will take a “common sense approach,” comparing it to EPA’s approach to the GHG BACT guidance, which she described as “not overly ambitious.”

At the same time, the first PSD permit for… More

This Administration Does Nuance: The US Files Its Brief in the American Electric Power Case

This week, the United States filed its brief in American Electric Power v. Connecticut. The brief is a nicely nuanced and persuasive argument for dismissal of plaintiffs’ public nuisance claims against five large power generators. The brief is nuanced in that it acknowledges that plaintiffs have Article III standing – allowing the Court to avoid reaching a constitutional standing issue – and provides a vehicle for the Court to avoid reaching the political question doctrine issue.

Instead, the brief makes two fairly simply points – and makes them convincingly. First, the brief argues that plaintiffs’ lack “prudential standing,” because their complaint raises… More

Sleep Tight….

Although I do try to be entertaining, I don’t normally post items solely for their humor value, but I have to admit, I loved EPA’s press release announcing its “National Bed Bug Summit.” I just want to know, do those who attend in person get free rooms? Little goody bags of approved pesticides when they check in?

bed bugs

Is NSR Enforcement A Subterfuge For a Carbon Policy — Or Just a Happy Coincidence?

Last month, I noted that, in the absence of comprehensive climate legislation, U.S. carbon policy would be a mish-mash of several elements – including more NSR enforcement. In fact, Phillip Brooks, director of EPA’s Air Enforcement Division, had just told an ALI/ABA forum that EPA’s NSR enforcement initiative is alive and well and he predicted more closures of old coal plants as a result of EPA’s NSR enforcement. Earlier this month, proving that Brooks meant what he said, the United States sued Ameren Corporation, alleging NSR violations at Ameren’s Rush Island facility in Festus, Missouri.

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How Is Mountaintop Mining Like Cool Hand Luke?

spruce mineIn Cool Hand Luke, Paul Newman is sentenced to two years on a chain gang for cutting the heads off of municipal parking meters.  The Mingo Logan Coal Company wants to cut the top off of 3.5 square miles of West Virginia mountaintop. This week, EPA gave the company’s Spruce No. 1 Mine proposal the death penalty, using its authority under § 404(c) of the Clean Water Act to veto a permit issued by the Army Corps of Engineers in 2007. As EPA noted in its press release, this is only the… More

Federalism Today: Biomass Edition

Justice Brandeis famously suggested that states may “serve as a laboratory” for the rest of the country. If this is so, I think it is fair to say that U.S. EPA has not accepted the results of the biomass experiment conducted in Massachusetts. Last year, following receipt of a study regarding the GHG emission implications of various types of biomass fuels, Massachusetts decided to severely restrict the circumstances in which biomass would be considered a renewable fuel.

Earlier this week, EPA decided not to go along with the restrictive approach taken by Massachusetts, and granted a petition to… More

Would CES Legislation Be Like Half a Loaf of Cap-And-Trade?

With everyone in agreement that cap-and-trade legislation is dead in Congress for the near term, attention is now turning to whether Congress might be able to pass some kind of renewable or clean energy standard. In fact, even Thomas Donahue, President of the U.S. Chamber of Commerce, sworn foe of cap-and-trade legislation, is saying that the Chamber could support some kind of climate change legislation – presumably a CES including nuclear power – as long as the legislation precludes EPA regulation of GHG under existing authority. 

For those who are taking the half a loaf approach to climate legislation, I… More

Another Fine Mess: Another NSR Enforcement Case

Homer-City-coal-fired-plantEarlier this week, the United States brought another NSR/PSD enforcement action, this time concerning the Homer City Plant, in Pennsylvania. The suit itself isn’t big news, though it’s helpful to have periodical reminders that the NSR enforcement initiative remains active at EPA and DOJ; it is a significant part of the government’s arsenal against traditional pollutants.

It’s also important to remember that, in the absence of comprehensive climate legislation, the NSR enforcement initiative has become part of the government’s climate strategy. The plant spokesman stated that the plant is… More

Would You Spend $1Billion To Remove PCBs From Light Ballasts in New York City Schools?

It may be an apocryphal story, but my understanding as to why so many small municipal landfills in New Hampshire ended up on the NPL is that some bright light in the Granite State thought that Superfund was a public works program and that the fund would pay for the landfill closures. The result? Small towns became PRPs, responsible for Superfund response costs which, in some cases, approximated their annual municipal budget.

I recall going to a public meeting concerning EPA’s preferred alternative at one site. At most sites, the public pleads for EPA to require more cleanup – because someone else… More

Want to Know Why Congress Can’t Pass Climate Legislation? Here’s Your Answer

And you thought that the explanation was just partisan gridlock in Washington? According to a study that has been accepted for publication in Environmental Research Letters, it will be somewhere between 120 years and 550 years before losses caused by Atlantic tropical storms can be statistically attributed to anthropogenic climate change. It’s important to note that this study is not by climate skeptics; nor are the authors opposed to Congressional action. They are simply pointing out that it’s damn hard to attribute causation to specific storms or on short time scales. As they note in their conclusions:

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The Next Big Thing for the Future of Everything

In what might not be an overstatement, Seth has described Massachusetts’ Global Warming Solutions Act (GWSA), as "the future of everything".  If so, welcome to the future of the future of everything.  The GWSA requires the Executive Office of Energy and Environmental Affairs (EEA) to set a 2020 goal for state-wide reductions of greenhouse gas emissions, and, before January 1, 2011, to create a plan outlining how to get there.  Just in time, EEA yesterday released the Clean Energy and Climate Plan for 2020, which sets the 2020 emissions goal at 25% below 1990 levels (the maximum reductions… More

EPA Delivers an Early Christmas Present to Electricity Generators and Refiners — New Source Performance Standards for GHGs

Today, EPA announced settlements of litigation with states and environmental groups which will require EPA to promulgate New Source Performance Standards for greenhouse gas emissions from electric generating units and refineries. EPA will thus give those of us who practice in this area an opportunity to decide which program we find more cumbersome and ill-suited to regulate GHGs, the PSD/NSR program or the NSPS program.

As with the PSD/NSR regulations, I remain sympathetic to EPA in that, once you take Massachusetts v. EPA as a given, and if you accept the logic of the Endangerment Finding,… More

Is the Republican Party In Favor of Sulfur Emissions? Senator Graham Wants To Know

It says something about where our politics are today when Republican Senator Lindsey Graham has to ask that question. Of course, there’s reason to wonder what the answer is. It was certainly not intentional irony when, shortly after this story appeared about Senator Graham, Senator Rockefeller announced that he has given up on legislation that would delay implementation of EPA GHG rules because the bill has lost Republican support. The reason? It’s not that the Republicans are opposed to the delay; it’s just that it’s more important to the Republicans that they be able to make… More

Carbon Policy When There Is No Carbon Policy

As a follow-up to last week’s post, if you want a handy-dandy rundown of what U.S. carbon policy looks like in the absence of comprehensive federal legislation, take a look at the presentation I gave last week to the Harvard Electricity Policy Group, which summarizes federal, regional, and state regulatory efforts – many of which are not explicitly directed at CO2 – that are likely to have significant impacts on U.S. CO2 emissions. Thanks to Amy Boyd, who did the lion’s share of the work on this one.

How Is Carbon Policy Like Anatevka? A Little Bit of This, A Little Bit of That

anatevkaBill Hogan at the Kennedy School (shameless plug for alma mater) kindly asked me to speak at a meeting this week of the Harvard Electricity Policy Group. I’ve titled my talk “Carbon Policy When There Is No Carbon Policy.” Several items that came across the wires in the past few days buttress the theory behind my presentation, which is that our current carbon policy really is “A little bit of this, a little bit of that.”

First, Phillip Brooks, director of EPA’s Air Enforcement Division, told an ALI/ABA forum that… More

Is the Promulgation of Regulations Like Sausage-Making? EPA Thinks Not

Bismarck is supposed to have said that:  "Laws are like sausages, it is better not to see them being made.” EPA apparently disagrees, and has launched a new web site, known as Reg Stat, in order “to increase the transparency of regulatory activity.”

It’s a potentially helpful website. It has some useful data on the types of regulations EPA is pursuing (mostly air during the past five years; what a shock!) and how long it takes to promulgate them (too long; the average regulation takes almost three years to get out the door). I think that the “Regulatory Gateway,” containing information… More

EPA Really Cares About Stormwater Enforcement

When EPA creates a web page solely addressing one stormwater settlement, you can safely assume that EPA thinks it is important and is trying to send a message. Thus, EPA’s announcement earlier this week of a settlement with Beazer Homes to resolve allegations that Beazer Homes violated federal stormwater requirements at construction sites in 21 – count ‘em, 21 – states should make everyone in the construction industry sit up and take notice.

The settlement requires Beazer Homes to pay a penalty of $925,000 (mostly to EPA, but some to each of the states). EPA estimated a price tag for… More

Top 10 Fun Facts About the 10th RGGI Auction

The 10th auction in the Regional Greenhouse Gas Initiative (RGGI) was held on December 1st.  In honor of this significant round number, I give you the top 10 interesting facts about the 10th RGGI Auction, all of which are based on today’s market monitor report:

10)  In the Auction, 24,755,000 allowances from the 2009-2011 compliance period sold for $1.86 each (the floor price);

9)  That amount is only 57% of the 2009-2011 allowances offered for sale, the lowest yield from a current compliance period auction;

8)  38 entities bid on these current compliance period allowances, down from 45 in… More

Which Take Longer in Massachusetts, Permit Renewals or Permit Appeals?

An adjudicatory hearing decision issued by MassDEP in September just came to my attention. The decision in the case, In the Matter of Town of Plymouth, is worth reading for those of you interested in the emerging issues related to concerns over nutrients and how nutrient discharges will be regulated in groundwater or surface water discharge permits.

What caught me eye about the decision, however, wasn’t its substance, but was instead its procedural history. The Town of Plymouth first obtained a permit for the groundwater discharge from its municipal wastewater treatment plant in 2000. The Eel River Watershed Association appealed that… More

EPA Releases Rules for Carbon Capture and Storage

One thing supporters of coal will be thankful for tomorrow is this week’s announcement by the Environmental Protection Agency (EPA) that it has finalized two rules governing the underground sequestration of carbon dioxide.  Both rules are designed to support and facilitate the commercial development of safe, large-scale carbon capture and storage (CCS) technologies, perceived by many to be the best hope for the future use of coal.

The first rule creates a new "Class VI" injection well under EPA’s Underground Injection Control Program through the the Safe Drinking Water Act.  Elements of the rule are based on the existing… More

No Irony Intended, I’m Sure: EPA Must Focus Systematically on Environmental Justice in Order to Encourage Economic Development

Daily Environmental Report noted earlier this week that Bob Perciasepe, EPA Depute Administrator, has told the National Environmental Justice Advisory Council that environmental justice is the “largest remaining challenge” that EPA must address systematically. This is not particularly surprising, since Lisa Jackson has made EJ a priority.

However, I was left nearly speechless by the statement in Daily Environment Report that Perciasepe indicated that

Polluted communities are also not likely to be targeted for business investment, meaning those communities have limited economic opportunities in addition to disproportionate pollution burdens.”

Once again, I’m left wondering what planet EPA is from. Those… More

Forthcoming Changes to RGGI? Let’s Start with the Big Cap.

The cap in the nation’s first mandatory cap-and-trade system is probably set too high.  As reported by ClimateWire this morning, it seems increasingly likely that participants in the Regional Greenhouse Gas Initiative (RGGI) will easily meet and beat RGGI’s ultimate goal, even without any changes or reductions actually caused by the program.

RGGI’s initial aim was to cut CO2 emissions from large power plants in the 10-state region to 10% below 2005 levels by 2018.  This plan involved two stages: one with the cap stabilized at 180 million tons CO2e from 2009-2014, and the second, from 2015-2018, with a cap… More

EPA Finally Issues GHG BACT Guidance: Now Everything Will Be Smooth Sailing

EPA has finally released it long-awaited PSD and Title V Permitting Guidance for Greenhouse Gases, also known as the GHG BACT Guidance. E&E News quoted Gina McCarthy as saying that GHG permitting would be “business as usual” and that the transition to issuing PSD permits for GHGs would be relatively smooth.

Not.

It’s certainly true that the GHG BACT Guidance says nothing particularly new about how permitting agencies should perform BACT reviews. Giving credit where credit is due, I’ll complement EPA for using plain English and describing the basic BACT process about as cogently and concisely as I’ve… More

What Are Citizen Groups Afraid Of? The Ninth Circuit Affirms Delegation of NPDES Authority to Alaska, Notwithstanding Alaska’s Fee-Shifting Provision

Almost all – 46 – states have delegated programs under the Clean Water Act. One criterion that EPA must determine has been satisfied before approving delegation is that the state has the ability to "abate violations of the permit … including civil and criminal penalties and other ways and means of enforcement."

EPA’s regulations provide that this criterion will be met if :

State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit. A State will not meet this standard if it narrowly restricts the… More

Post-Election Climate Wrap-Up: Anxious Days Ahead For EPA

I’ve always thought that implementation of EPA’s GHG rules for stationary sources was inevitable in the absence of climate change legislation. The Supreme Court told EPA that GHGs are a pollutant under the Clean Air Act. Given the decision in Massachusetts v. EPA, EPA’s subsequent regulatory moves have been pretty much unavoidable. 

Since the statute seems to mandate GHG regulation, only Congressional action could block the rules. While a House majority seemed plausible, even before the election, getting 60 votes in the Senate always seemed a much stiffer proposition. Moreover, one could always expect an Obama veto, if legislation precluding EPA’s rules somehow… More

Dog Bites Man: NEPA Reviews Are Getting More Complex

Stop the presses: According to the Daily Environment Report, EPA’s director of the Office of Federal Activities, Susan Bromm, has acknowledged that concerns about climate change and environmental justice are “contributing to the size, cost, and time-consuming nature of environmental impact statements….” Nonetheless, Ms. Bromm apparently asserted that these "analyses do not have to be overwhelming,” and she blamed, at least in part, agencies which “overreact to the fear of litigation.”

Not surprisingly, a speaker on the same panel from DOT felt otherwise. According to Helen Serassio, an attorney at DOT:

We’ve gotten to the point where they’re kind of out… More

Think Globally, Act Locally — Or Not: More Evidence that Mercury Is a Global Problem

Is mercury a local problem or not? For years, power plant operators have claimed that mercury deposition is really a global problem. Environmentalists have pointed to studies arguing that hot spots affected by local emissions do exist. This week, according to the Cape Cod Times, John Colman, a USGS researcher – hardly likely to be a shill for the power industry – is going to report results of a study showing that mercury accumulation in both soil samples and fish tissue are comparable in Cape Cod and the Olympic Peninsula in Washington. Given prevailing wind directions, it’s hard to find… More

New Arsenic MCL in the Works? Will I Be Dead Before Any of My Sites are Clean?

As Superfund practitioners know, federal NPL sites are generally settled on the basis that the PRPs will first attain interim cleanup levels, though final cleanup levels are not determined until EPA is actually ready to issue its certification of completion of the remedy. Moreover, EPA insists that, should any ARARs change during the course of the cleanup, whatever standards are in effect at the time of site closure will be applied.

We saw the impact of this on the ground in 2001, when EPA revised the Safe Drinking Water Act maximum contaminant level, or MCL, for arsenic from 50 ppb… More

For Coal, It’s Not All About Climate Change: Credit Suisse Predicts New Air Rules to Close 60 Gigawatts of Coal Capacity

Last March, I noted that Gina McCarthy’s belief that, in the near term, the biggest impact on GHG emissions would come from EPA’s traditional regulatory programs, rather than through GHG regulation. A report recently released by Credit Suisse indicates that she might be right. Looking at EPA’s upcoming promulgation of the Clean Air Transport Rule and the mercury MACT rule, Credit Suisse predicts that between 50 and 69 gigawatts of old coal plants will be retired between 2013 and 2017 as a result of implementation of the two rules. Credit Suisse also predicts that approximately 100 gigawatts of capacity… More

Yes, Virginia, You Can Estop the Government

One of the first lessons I learned as a summer associate, more years ago than I care to remember, is that the probability of a successful estoppel claim against the government is approximately the same as the probability that there is a Santa Claus. After the recent decision from the District of New Jersey in FMC Corporation v. American Cyanamid, the probability of a successful estoppel claim may still be low, but it isn’t zero.

FMC involves claims concerning the Higgins Farm Superfund Site, in Franklin, New Jersey. According to the decision, FMC contacted the State of New Jersey in 2001… More

Nanotechnology Regulation: Still a Public-Private Hybrid

NanoparticlesAs EPA begins to regulate nanomaterials more aggressively, but as concerns remain regarding EPA regulatory efforts, private efforts to regulate nanomaterials continue. ASTM recently announced that it is forming a new subcommittee on Nano-Enabled Consumer Products. The focus of the subcommittee will be on uses of nanomaterials containing silver. In particular, ASTM noted that it would be considering the following possibilities:

Standards for measurement of silver in textiles and liquids (including atomic spectroscopy to  assess mass)

Standards for evaluating the form of silver in textiles and liquids… More

Update on NSR Litigation: Cinergy Dodges a Bullet

In a crisply written opinion by Judge Posner, the 7th Circuit Court of Appeals just reversed a district court judgment against Cinergy in the NSR case involving Cinergy’s power plant in Wabash, Indiana, and directed that judgment enter for Cinergy. It is not obvious that the case will have wide applicability, but it is certainly worth noting.

The first key issue in Cinergy was whether proposed new projects would be subject to NSR review if they were expected to result in an increase in annual emissions or only if they would result… More

Just in Case You Thought EPA Could Go On Its Merry Way in the Absence of Climate Legislation

Earlier this week, I posted about the dire prospects for climate change legislation following the fall elections. The alternative to legislation has always been regulation under existing Clean Air Act authority, so it’s appropriate as a follow-up to briefly examine the pressures on EPA as it moves forward with its stationary source GHG regulations. Two headlines from the trade press today brought home just what a tightrope EPA is walking.

The first headline, from the Daily Environment Report, was to the effect that a “Ban on New Source Construction [Is] Possible In States Without Greenhouse Gas Permitting.” Specifically, Raj Rao, of… More

Just In Case You Hadn’t Realized That Climate Legislation Will Be An Uphill Battle In The Next Congress

It’s been obvious for some time that Republican victories in next month’s elections will only make it more difficult to pass climate legislation. However, perhaps the most telling reminder of the difficulty in passing climate legislation came last week from the Democrats, not the GOP. Governor Joe Manchin, running for Senator Byrd’s seat, was endorsed by the West Virginia Coal Association. Among the bullets noted in the press release, the WVCA noted that:

Governor Manchin opposes any form of Cap & Trade legislation that threatens the jobs that our coal mining families depend on for their livelihoods. 

The press release also notes… More

Coming Soon From EPA: More Enforcement

If environmental lawyers have been wondering when they’re going to get their share of economic stimulus, it’s time to stop wondering. Last week, Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, announced that her office would be focusing on higher impact cases.  Giles also noted that, by the end of this month, EPA would have more than 200 criminal investigators.

If it weren’t for one statement by Giles, I don’t think that this would be news. Enforcement numbers always fluctuate. Environmental and watchdog groups always criticize EPA and state agencies when the numbers go… More

EPA’s Mandatory Reporting Rule Adds New Disclosures of Corporate Ownership and Cogeneration

A recent amendment to the EPA’s Mandatory Reporting of Greenhouse Gases Rule (40 CFR part 98) requires companies that report their emissions to also provide information on corporate ownership, North American Industry Classification System (NAICS) codes, and whether any of the emissions come from a cogeneration unit. The goal behind collecting this information is to gain a better understanding of the aggregate greenhouse gas (GHG) emissions from corporations and specific industry sectors, and identify potential differences in emissions between otherwise similar facilities due to cogeneration. Such information can be used to guide future GHG regulations and mitigation strategies…. More

Regulation of Nanomaterials Is For Real: EPA Publishes Significant New Use Regulations for Carbon Nanotubes

Technology geeks such as myself love nanotechnology. I think it’s the future of everything – including the solution to environmental problems ranging from climate change to Superfund cleanups. However, there are concerns about the toxicity of nanomaterials.

Last Friday, EPA took a significant step in the regulation of nanomaterials by publishing significant new use rules – SNURs – for both single- and multi-walled carbon nanotubes. Any person manufacturing, importing, processing, or using SWCNT or MWCNT (and you’ve got to love nanotechnology, if only for the proliferation of new acronyms), will be… More

NIST Releases Guidance On Protecting Our Digital Energy Infrastructure (Or, Is Big Brother in Our Power Lines?)

Discussion of the Smart Grid usually focuses on efficiencies that may be achieved by a system that responds to real time information about energy production, distribution and consumption. But the development of this advanced digital infrastructure, with two-way capabilities for communicating information, controlling equipment, and distributing energy, also presents some legitimate information security and privacy concerns. For example, a disgruntled employee or a terrorist with the right computer skills could penetrate a network and alter load conditions to destabilize the grid in unpredictable ways. The grid may also be compromised by inadvertent events such as equipment failures and natural disasters.

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You Want to Preclude a Citizens’ Suit? Pick Your Poison

When clients are threatened with citizen suits – and particularly when the threatened litigation involves a matter where EPA or a state regulatory agency is heavily involved, the clients always want to know why they can’t somehow get rid of the citizen suit, given that EPA is on the case. The answer is that they can – but only in limited circumstances.

The recent decision in Little Hocking Water Association v. DuPont confirmed this answer in the context of RCRA. The Little Hocking Water Association provides public water… More

Is EPA Treading On Thin Ice With Its Climate Change Regulations?

On a day when ClimateWire reported that thousands of walruses are stuck on land because their usual summer home – sea ice – has disappeared, I’m beginning to wonder whether EPA’s stationary source GHG rules are similarly at risk. It may not be difficult for EPA to brush off a fairly over the top letter from Texas which basically asked EPA “What part of ‘hell no” don’t you understand?”

However, today Greenwire reports that Governor Freudenthal of Wyoming – a Democrat – is asking EPA to defer enforcement of GHG stationary… More

RGGI Auction #9: The Floor Price is Right

The Regional Greenhouse Gas Initiative (RGGI) auction program celebrated its second birthday this week by holding the 9th regional auction of CO2 allowances.  As today’s report highlights, the auction brought a bittersweet first for the 10-state program: unsold allowances from both the current and future regulatory periods.  Bidders bought only 75% of the 45.6 million 2010-vintage allowances offered and just 61% of the 2013-vintage allowances, with both auctions closing at the mandatory floor price of $1.86.   Not surprisingly, given these results, participation in the auction was down — the 2010 auction garnered bids from 45 entities, 92% of… More

More on TMDLs, or Too Much Darn Litigation

Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs.

Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards Bay filed suit late last month, challenging implementation by MassDEP and EPA of the TMDL program for certain embayments on Cape Cod and Nantucket. (Full disclosure time – this firm represents the CBB on unrelated matters.)

The law suit claims that MassDEP erred in… More

Has The Bell Tolled For GHG Public Nuisance Litigation? The United States Government Thinks So

I have previously expressed my distaste for public nuisance litigation to require reductions in GHG emissions. It cannot be more than a tactic in a war to the plaintiffs, because the chaos resulting from regulation of a global problem through a series of individual law suits has to be obvious to everyone. Now, apparently, that chaos is also obvious to the Obama administration, because it has filed a brief with the Supreme Court, asking the Court to accept a certiorari petition filed by the defendants in American Electric Power v. Connecticut, the 2nd Circuit case in which the Court… More

There Is a Statute of Limitations For Challenging Permits In Massachusetts (Or, We’re Crazy Here, But Not That Crazy)

Those who operate industrial facilities or do development in Massachusetts often know far more than they would like about Chapter 214, § 7A, the environmental citizens’ suit provision of the Massachusetts General Laws. Chapter 214, § 7A, eliminates plaintiffs’ usual obligation to demonstrate standing and simply gives 10 citizens the right to sue to prevent or eliminate “damage to the environment.” The damage does have to constitute a violation of a statute, regulation, ordinance, or by-law, the major purpose of which is to prevent damage to the environment.

Chapter 214, § 7A, does not contain any statute of limitations. Does this mean that ten persons… More

What’s Next for Carbon Capture and Storage?

In February, President Obama tasked the Interagency Task Force on Carbon Capture and Storage with the ambitious goal of overcoming the barriers to widespread, cost-effective deployment of carbon capture and storage (CCS) within the next 10 years.  As the first bold step, the 14-agency and executive department group released its findings in a report on August 12.

The report concludes that widespread cost-effective deployment of CCS will only occur if the technology is commercially available (i.e. scale-able and cost-effective) and a supportive national policy framework is in place to both fund and regulate it.  The task force believes… More

Sometimes Guidance Is Better Than Regulation: Massachusetts Issues “Safe Development” Guidance For Engineered Nanoparticles

The BNA reported today that the Massachusetts Office of Technical Assistance and Technology has developed a guidance document identifying considerations for the safe development of engineered nanoparticles, or ENPs. As many of my readers know, I am deeply suspicious of regulatory agency guidance documents. Guidance is often used as a short-cut so that the agency can avoid notice and comment rule-making. Moreover, it’s generally one-sided; agencies refuse to be bound by guidance, because “it’s only guidance,” but street level bureaucrats effectively treat the guidance as regulations, so that the regulated community is effectively deprived of the flexibility that guidance… More

EPA’s NSR Enforcement Initiative Marches On

EPA shows no signs of slowing down in its efforts to use the Clean Air Act’s PSD/NSR provisions as an enforcement club. The latest target in EPA’s crosshairs is the Detroit Edison Monroe Power Plant. Late last month, DOJ filed a complaint alleging violations of PSD/NSR requirements in connection with a project to replace the high temperature reheater and the economizer at Monroe Unit 2. Aside from the broad sign that EPA remains committed to these cases, the most recent action is notable for at least two reasons:

The suit names both… More

The SJC Really Means It: Only the Legislature Can Give Up the Public’s Ownership Interest in Tidelands

As many of you know, the Commonwealth’s tidelands licensing statute, Chapter 91, is one of my favorites, for no other reason than that it gives me the opportunity to talk about where the “waters ebbeth and floweth.”  Deriving from the Colonial Ordinances of 1641 and 1647, Chapter 91 is about as arcane as it gets – which, of course, lawyers are supposed to like.

The short version is that the Commonwealth holds the fee interest in “Commonwealth Tidelands” – those below the low water line. While the Commonwealth can… More

Well, I Know I Feel Endangered…

The good news is that EPA is relying on good science. The bad news is that the science says things will keep getting worse.

After several months of review, on July 29, EPA denied 10 petitions to reconsider its 2009 Endangerment Finding for Greenhouse Gases under Section 202(a) of the Clean Air Act. The petitions, which were filed by, among others, the attorneys general of Texas and Virginia and the US Chamber of Commerce, pointed to errors in the 2007 report by the Intergovernmental Panel on Climate Change and the University of East Anglia “Climategate” email scandal as examples of how the… More

Rube Goldberg Had Nothing on EPA: The Agency Releases Its Interim Guidance on Considering Environmental Justice During the Development of an Action

EPA has just released its Interim Guidance on Considering Environmental Justice During the Development of an Action. I can’t say I’m excited. The broad issue is probably too complex for a blog post, but the simple version is as follows:

Congress passes environmental protection laws for EPA to implement. Those statutes generally provide for EPA to set standards with something like “an adequate margin of safety.” EPA does its job.

Contrast the simplified model process shown above with this diagram from the Interim Guidance.

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The Western Climate Initiative Moves Forward

Now that the Senate has put an end to speculation about a federal cap-and-trade program, the laboratory of the states and patchwork of regional regulation seem even more important.  The Western Climate Initiative (WCI) will likely involve a little of both.

Yesterday, the WCI Partner Jurisdictions (seven US states and four Canadian provinces) unveiled their comprehensive strategy for a cap-and-trade program with the goal of reducing regional greenhouse gas emissions by 15% below 2005 levels before 2020. The program is planned to begin in 2012, although apparently only California, New Mexico, Quebec, Ontario, and British Columbia are on track… More

Chalk One Up For Reason and Common Sense: The 4th Circuit Reverses the TVA Public Nuisance Decision

My apologies if this post is a mash note to Judge Wilkinson. Sometimes a decision is written with such clarity and simplicity that you have to sit up and take notice. Such is the case with yesterday’s decision in North Carolina v. TVA, reversing the District Court decision imposing an injunction against four TVA plants that would have required installation of additional controls for NOx and SO2 , notwithstanding the absence of any allegation that the plants were violating their permits under the Clean Air Act. My apologies also to my friends in the environmental community and the Massachusetts AG’s office, who… More

Climate Legislation Is Dead (For Now): Long Live Conventional Pollutants

Climate change legislation is dead for now. I won’t pretend it’s not depressing, even though I avoid the political channels and ignore the rhetoric. For those of us who haven’t refudiated climate change science, it’s a victory for the pessimists and evidence that Congress has a hard time addressing long-range problems, even if consequential.

With respect to regulation of GHG, it’s the worst of both worlds and no one should be happy (which is why I held out hope until the end that cooler heads would prevail). We’re still going to have regulation of GHG, the mechanism being EPA’s recently promulgated More

The Deck is Still Stacked in the Government’s Favor — Is This A Good Thing?

Last week, in City of Pittsfield v. EPA, the First Circuit Court of Appeals affirmed denial of a petition by the City of Pittsfield seeking review of an NPDES permit issued by EPA. The case makes no new law and, by itself, is not particularly remarkable.  Cases on NPDES permit appeals have held for some time that a permittee appealing an NPDES permit must set forth in detail in its petition basically every conceivable claim or argument that they might want to assert. Pretty much no detail is too small. The City of Pittsfield failed to do this, instead relying on their… More

EPA – Finally – Proposes CAIR Replacement

On July 6, 2010, the United States Environmental Protection Agency (“EPA”) released a proposed rule, dubbed the “Transport Rule”, which would replace the Clean Air Interstate Rule (“CAIR”). As you likely recall, in 2008 the D.C. Circuit Court of Appeals, in North Carolina v. EPA, found that CAIR had a number of fatal flaws and remanded it to the Agency. (Due to its environmental benefits, the Court agreed to leave CAIR in effect while EPA worked on addressing its concerns).  

EPA has clearly attempted to address the problems identified in North Carolina v. EPA. Most significantly, while the Transport Rule… More

RGGI Allowances on the Secondary Market: Slow but Steady?

Not surprisingly, the secondary market price for Regional Greenhouse Gas Initiative (RGGI) allowances fell for the 4th quarter of 2009, as noted by RGGI Market Monitor Potomac Economics in their recent report.  Trading in RGGI allowances futures declined from 319 million allowances in the third quarter of 2009 to 127 million in the fourth quarter, despite the number of firms participating remaining the same.  Futures prices also declined 8% — from $2.45 to $2.25.   Even so, futures prices remain notably higher than the clearing prices of the RGGI auctions, which were $2.19 and $2.05, respectively, in the September and… More

A Combined Superfund and Stormwater Rant

Sometimes, the practice of environmental law just takes my breath away. A decision issued earlier last month in United States v. Washington DOT was about as stunning as it gets. Ruling on cross-motions for summary judgment, Judge Robert Bryan held that the Washington State Department of Transportation had “arranged” for the disposal of hazardous substances within the meaning of CERCLA by designing state highways with stormwater collection and drainage structures, where those drainage structures ultimately deposited stormwater containing hazardous substances into Commencement Bay —… More

EPA Issues Its Final Set of Mandatory GHG Reporting Rules

When we blogged about the Mandatory Greenhouse Gas Reporting Program regulations last fall, we noted that the EPA had excluded from the final regulations emission source categories such as wastewater treatment plants and underground coal mines that were initially included in the draft rules.  No longer. Yesterday, EPA finalized regulations requiring an estimated 680 facilities in the four sectors of underground coal mines, industrial wastewater treatment systems, industrial waste landfills and magnesium production facilities to begin collecting emissions data on January 1, 2011, and submit their first annual report in March 2012. Despite being few in number, these facilities, which… More

The Supreme Court Really Means It: Injunctions Are Not Automatic Under NEPA

Yesterday, the Supreme Court issued its decision in Monsanto v. Geertson Seed Farms, the big NEPA case before the Court this term. The District Court had struck down the decision by the Animal and Plant Health Inspection Service to completely deregulate roundup ready alfalfa (RRA). That decision was not actually under appeal. The appeal concerned only the scope of the injunction issued by the District Court, which precluded APHIS from issuing any kind of deregulation decision without completing an Environmental Impact Report (EIS) and similarly issued a nationwide injunction against planting of RRA… More

Coal Still in the Crosshairs

Two seemingly unrelated reports last week serve as a reminder that coal remains very much under siege. First, Earthjustice, on behalf of a number of environmental organizations, filed a petition with EPA under § 111 of the Clean Air Act requesting that EPA identify coal mines as an emissions source and, consequently, establish new source performance standards for coal mine emissions of methane and several other categories of pollutants. 

Second, as Daily Environment reported, the Army Corps of Engineers suspended use of Nationwide Permit 21 for the six states in the Appalachian region, covering Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and… More

Supreme Court Takings Jurisprudence: Not Exactly Crystal-Clear

Yesterday, the Supreme Court decided, 8-0, in Stop the Beach Renourishment v. Florida Department of Environmental Protection, that a Florida law which allows the State DEP to fill in submerged land (owned, under Florida law, by the State), and then to cut off the littoral owners’ rights to accretion of the beach front without paying compensation, was not a taking requiring compensation under the 5th Amendment. The decision was fairly easy, even for the property rights wing of the court, because it concluded that Florida law had always provided for such a result, so that the action by… More

Taking it to the Streets: the East Coast’s Newest Climate Initiative

It may be time to learn a new acronym.  The 10 RGGI states, plus Pennsylvania and Washington DC have banded together to create the Transportation and Climate Initiative (TCI) — a group that has pledged to create a plan to address the estimated 30% of greenhouse gas emissions on the eastern seaboard caused by the transportation sector. 

In a Declaration of Intent released Wednesday, the leaders of the environmental, transportation and energy agencies of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Washington DC, pledged to develop and implement a three-year work… More

Product Stewardship or Just Cost-Shifting?

Product stewardship is definitely in vogue. The Daily Environment Report has just noted that the United State Conference of Mayors has adopted a resolution calling for “Extended Producer Responsibility For Products.” I understand the arguments in favor of product stewardship. From an economic point of view, the disposal costs associated with products and product packaging can be seen as an externality. Internalizing those costs would give manufacturers and distributors incentives to minimize those costs, through reduced packaging or changes in design/manufacturing that would reduce the costs associated with product disposal.

Nonetheless, I’m skeptical of the USCM resolution and wonder about how “producer… More

Coming Soon to an Industrial Boiler Near You: Franken-MACT

EPA held a public hearing this week on its proposed MACT standards for industrial boilers. The issue may not be as sexy as climate change, but it’s an important rule and not just for those operating industrial boilers. For example, the cement industry has burned 50 million tires – including steel belts – according to its own data. EPA wants to classify such tires as a solid waste, rather than a fuel, which would subject cement kilns to incinerators standards. This has the Rubber Manufacturers Association up in arms. (Query: Does the Michelin Man have arms?)

Industry representatives say that the standards simply can’t… More

After Murkowski, What Now For Climate Change in Congress?

A week after the Senate’s rejection of the Murkowki resolution last week, where does climate change stand in Congress? The defeat of the resolution is not the end for those who don’t want EPA to regulate under existing authority. Senator Rockefeller hopes to get to the floor a bill that would delay EPA regulation of stationary sources for at least two years, but keep in place the mobile source compromise reached last year. Rockefeller has stated that he hopes to get the votes of some Senators who opposed Murkowski’s resolution.

What about cap-and-trade legislation? Notwithstanding the President’s stated commitment to getting it… More

RGGI Auction #8: Even Cheap Allowances Add Up to Big Investments

In the Regional Greenhouse Gas Initiative’s (RGGI) eighth auction of CO2 credits on June 9th, the clearing prices were the lowest yet – $1.88 for 2009-2011 credits and the auction floor of $1.86 for 2012-2014 allowances.  Despite these low prices, the auctions still brought in some $80 million.  In total, cumulative RGGI proceeds to be used by the 10 participating states for renewable energy, energy efficiency and low-income energy assistance programs now total $662.8 million.

RGGI’s announcement of the auction results highlights some of the specific programs in which the states have invested, and the returns we are already… More

Water, Water, Everywhere: More Than a Drop to Treat

Last week, EPA released its Clean Watersheds Needs Survey 2008 Report to Congress. I have three immediate reactions to the Report. The first is that there are a lot of needs out there. The Report’s bottom line is that there is currently an expected shortfall of $298 billion over the next 20 years for clean water infrastructure. As Congress turns from short-term stimulus spending to long-term concerns about the deficit, it’s difficult to see Congress being eager to hear National Association of Clean Water Agencies Executive Director Ken Kirk say that

the federal government must become a long-term partner in developing a… More

Regional GHG Programs Share Consensus Views on “High Quality Offsets”

By now we are all familiar with the criteria for robust carbon offsets:real, additional, verifiable, enforceable, permanent.  But what exactly do those criteria mean?  And how should a cap-and-trade program be designed to ensure that they are met?  

Earlier this month the three regional U.S. greenhouse gas programs released a white paper which sets out their answers. In Ensuring Offset Quality: Design and Implementation Criteria for a High-Quality Offset Program, representatives of the Regional Greenhouse Gas Initiative, the Western Climate Initiative, and the Midwestern Greenhouse Gas Reduction Accord provided their consensus view on key offset policy design and… More

If Trees Have Standing, Can We Sue Kudzu For Violating the Clean Air Act?

In 1972, Christopher Stone published his seminal book “Should Trees Have Standing?” That same year, Justice Douglas posed essentially the same question in his dissent in Sierra Club v. Morton, in which he argued that inanimate objects should have standing “to sue for their own preservation.”

I hadn’t thought of this for some time, but was reminded of the issue by an article in GreenWire this week, reporting on a study which has concluded that kudzu, an invasive species which is, one might say rhetorically, taking over the southeastern United States, increases NOx levels and thus leads to… More

Politics Makes Strange Bedfellows: Climate Change Edition

It now appears that Senator Murkowski’s resolution disapproving EPA’s endangerment finding will come to a vote in the Senate sometime in June. The complexity of the political dynamic is highlighted by the speculation regarding what such a vote will mean. On the one hand, there are those who argue that a significant number of votes for the resolution will mean that climate change legislation is dead. On the other hand, Senator Graham has now predicted that the resolution will pass precisely because most Senators do want to pass a climate bill.

As a logical matter,… More

Time to See if the Suit Fits: EPA Releases the Tailoring Rule

First Kerry-Lieberman, then the Tailoring Rule – a busy week for climate change. Senator Kerry certainly did not miss the coincidence. He called the release of the Tailoring Rule the “last call” for federal legislation. I’ve noted before the leverage that EPA regulation would provide, but this is the most explicit I’ve seen one of the sponsors on the issue.

As to the substance, there are not really any surprises at this point. EPA is certainly working to soften the blow of GHG regulation under the PSD program. Here are the basics (summarized here):

January 2, 2011 – Facilities obtaining… More

Kerry Lieberman Is Here: Now What?

So, Kerry Lieberman (Graham?), also known as the American Power Act, is here. What does it mean?

My immediate reaction is that, in a big picture sense, they got it just about right. The fundamental issue, which was previously acknowledged by Senator Graham (can we start calling him “he who must not be named?”), is that we’re not going to solve the energy independence or climate change problems unless we put a price on carbon. This bill does that.

Frankly, the rest of the issues really only matter either to particularly constituencies or, as a related concern, to particular members of… More

EPA’s Move to Regulate Stormwater Discharges from Development Gathers Steam; EPA Issues Mandatory Questionnaire For Public Comment

EPA is proceeding with its plan to establish a new program to regulate stormwater discharges from new development and redevelopment, with a target date for a final rule by November 2012. The next step: the reissuance of draft mandatory questionnaires that, once finalized, will be sent to various stakeholders, including approximately 738,000 owners and developers of residential, industrial and commercial sites. According to EPA, the “target population for the Owner/Developer Questionnaires is all development establishments in the United States,” as defined by 8 NAICS codes (see Part A.4 of EPA’s Supporting Statement for further information on… More

To Be Hazardous or Not to Be Hazardous: EPA Floats Two Options for Regulating Coal Combustion Residuals

Environmentalists have been pushing for years to overturn the Bevill Amendment and get coal combustion residuals (CCR) regulated as a hazardous waste. The failure of an impoundment at the TVA facility in Kingston, Tennessee, in 2008 almost guaranteed that EPA would do something to regulate CCR. Like Hamlet, however, EPA seems to be having trouble making up its mind. Earlier this week, EPA announced two different potential regulatory approaches, one regulating CCR as a hazardous waste under RCRA Subtitle C and one regulating CCR as non-hazardous waste under Subtitle D of RCRA.

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No News Is Good News: Massachusetts Updates Its MEPA Greenhouse Gas Policy

Yesterday, the Massachusetts Executive Office of Energy and Environmental Affairs released its Revised MEPA Greenhouse Gas Emissions Policy and Protocol. For those who cannot get enough of this stuff, they also released a summary of revisions to the policy and a response to comments. On the whole, EEA took an appropriately moderate, incremental approach to revising the GHG policy. Indeed, it’s telling that the very first “change” identified by EEA in its summary is not a change at all – it’s EEA’s decision to retain the current case-by-case approach to determining appropriate performance standards and mitigation requirements. EEA decided not to… More

More Citizen Suits on the Horizon? EPA Continues To Make Enforcement Information More User Friendly

Last year, I noted that EPA had made its ECHO data base more user-friendly, creating a web-based map of enforcement actions. Last week, EPA took the effort a step further, at least with respect to Clean Water Act enforcement action. EPA’s Clean Water Act Annual Noncompliance Report, or ANCR, is available on the web in an interactive format that allows interested citizens to see where the noncompliance and enforcement action is taking place. 

As some of my clients are unfortunately aware, I’ve been seeing a lot of enforcement action recently, at both the federal and state level. It’s not clear long… More

Which is Going to Be More Difficult? Getting a Climate Bill or Getting a Climate Bill Right?

There has been a fair bit of evidence in recent weeks that getting a climate bill through Congress remains a difficult task. It is a sign of just how perfectly aligned the stars will need to be that the two recent problems for the bill were either completing unrelated to climate change or at best tangential.

First, as everyone knows, Senator Graham got annoyed that Senator Reid (locked in a tough reelection battle and needing Hispanic votes) suggested that he might move an immigration bill before the climate/energy bill. Senator Graham, as about the only Republican willing to work with Democrats, and… More

Patchwork or Preemption, Redux

Yesterday, Senator Lieberman (I -CT) confirmed that the climate bill that he, Senator Kerry (D-MA) and Senator Graham (R-SC) plan to announce next week will include preemption of state and federal initiatives, including EPA’s Clean Air Act authority.  Leaving aside the potential in his statement for the bill to also preempt state renewable energy and efficiency programs, the goal of predictability and one nationwide cap-and-trade system is an approach that we endorsed a few weeks ago, and one that H.R. 2454 also contained, albeit with a 5 year moratorium, rather than a complete preemptive ban.

But this stance on preemption is drawing fire from both sides… More

Western Climate Initiative or Mid-Canada Initiative?

The Western Climate Initiative is scheduled to begin its cap-and-trade program in 2012.  But as ClimateWire highlighted today, the number of states who will be ready and willing to participate in the program is quickly dwindling.  Utah is the latest member of the seven-state, four-Canadian-province agreement to announce that it will not have the state authority needed to actually implement a cap-and-trade program in 2012.  Montana, Washington and Oregon will also probably miss the 2012 start date, and Arizona’s governor withdrew from the cap-and-trade program entirely in February.  … More

Another Climate Update: Are Moderates Coming Aboard?

As Senators Kerry, Lieberman, and Graham get ready to release their version of a climate bill, negotiations with moderate Democrats are heating up. Ten Democrats, apparently let by Sherrod Brown and Debbie Stabenow released a letter outlining what they call “key provisions for a manufacturing” package as part of an overall bill. Here are some highlights the Senators’ wish list:

Investments in clean energy manufacturing and low carbon industrial technologies.

Ensuring law energy costs for manufacturers, including a “firm price collar”

A phase-in for regulation of GHG emissions from manufacturing

Allowance rebates for… More

Still Hope For New Municipal Waste Combustors in Massachusetts?

Yesterday’s New York Times had a very interesting article regarding the use of advanced municipal waste combustor technology in Europe. As the article notes, such plants are relatively commonplace in Europe, whereas literally no new waste-to-energy plants are being built in the United States. Ian Bowles, our own Secretary of Energy and Environmental Affairs – and someone who has generally been a very successful promoter of renewable energy technology – acknowledged that “Europe has gotten out ahead with this newest technology.” 

This shouldn’t be surprising given that states such as Massachusetts have moratoria on new municipal waste combustors. It’s difficult to… More

EPA Keeps Up the Stormwater Drumbeat: Releases Draft Permit for Charles River Communities

EPA Region 1 continues to roll out new programs on the stormwater front, and this week’s development is particularly important for private property owners in the Charles River watershed. The agency released proposed amendments to the Residual Designation for the Charles River (“RDA”) and a Draft General Permit for Residually Designated Discharges. While the proposed permit only affects the Massachusetts communities of Milford, Bellingham, and Franklin, EPA has stated that it may expand the General Permit to include other Charles River communities in the future, so property owners along the entire length of the Charles River should be paying attention.

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Time For Another Rant: Precautionary Principle Edition

As I have previously noted, Cass Sunstein, now head of the Office of Information and Regulatory Affairs at OMB under Obama, has called the precautionary principle “deeply incoherent.” Why? Because, as Sunstein notes, “costly precautions inevitably create risks.”

I hope that Sunstein is as troubled as I am by the news, reported recently by Inside EPA, that Mathy Stanislaus, head of EPA’s Office of Solid Waste & Emergency Response, has said that implementing the precautionary principle is a key to EPA’s environmental justice efforts.

When Stanislaus says that “we can’t wait until we have all the… More

Not So Fast with Renewed NSR Enforcement: Power Plants Win a Routine Maintenance Case

Last week, Judge Thomas Varlan handed the power plant sector a major win in the NSR enforcement arena, ruling that economizer and superheater replacement projects in 1988 at the TVA Bull Run plant were routine maintenance not subject to NSR/PSD regulations. Judge Varlan ruled for the TVA notwithstanding that:

The projects cost millions of dollars (but less than $10M each)

They extended the life of the plant by 20 years

The costs were identified as capital, not maintenance, expenses

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Yet More Bad News for Coal (Mining): EPA Issues Guidance Imposing Numeric Criteria For Discharges From Mountaintop Mining

Last week, EPA proposed to veto a permit for the No. 1 Spruce Mine in West Virginia. Yesterday, EPA went much farther, announcing new guidance – effective immediately – which will impose numeric water quality based effluent limits, or WQBELs, on effluent from surface mining projects. EPA has at least tentatively concluded that high conductivity resulting from discharges of mountaintop fill has adversely affected streams downstream of surface mining operations.

The guidance is fairly straightforward – and for those to whom is it not sufficiently simple, EPA has provided a six-page summary version. Basically, EPA has concluded that… More

Another Blow Against Common Sense: EPA Proposes to Revoke Bush Aggregation Rule

Last year, EPA delayed implementation of the Bush EPA’s Aggregation Rule; at the time, I said that the rule was on life support. Earlier this week, EPA announced that it was formally proposing to revoke the aggregation rule. It looks as though the rule is now off life support and it’s time for the last rites.

The aggregation rule always seemed to me a piece of simple, common-sense regulatory reform; it was not a case of wild-eyed right wing radicals trying to gut environmental regulations. The basic issue is this. EPA wants to make certain that regulated facilities don’t avoid… More

Insurance Regulators Vote to Weaken Climate Disclosure Rules

Just over a year ago, we noted the surprising, unanimous decision by the National Association of Insurance Commissioners (NAIC) to adopt rules requiring insurers to publicly disclose the impacts of climate change on their business decisions, to begin May 1, 2010.  Well, not so fast.   As Climate Wire reported, at Sunday’s NAIC meeting, a the commissioners voted 27-22 to make the disclosure rules optional for states to adopt, submissions to be voluntary, and insurers’ survey answers to be kept confidential.

The revised questionnaire adopted by NAIC includes the same 8 questions that were endorsed at last year’s meeting, but… More

Sorry; The Gas-Powered Alarm Clock Is No Longer Available

Some stories are just to much fun to ignore. Late last week, the GAO issued a report on the joint EPA/DOE Energy Star program. The sub-head says it all: “Covert Testing Shows the Energy Star Program Certification Process Is Vulnerable to Fraud and Abuse.” GAO found that it was able to obtain Energy Star certifications for 15 out of 20 bogus products for which it had sought certification, including a gasoline-powered alarm clock and a room air cleaner for which GAO submitted a picture of a space heater with a feather duster attached.

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EPA Finalizes Reconsideration of Johnson Memo: Confirms No Stationary Source GHG Regulation Before January 2011

EPA has finally issued its formal reconsideration of the Johnson Memo. As EPA had telegraphed, it confirms that a pollutant is only subject to PSD permitting requirements when that pollutant is subject to “a final nationwide rule [that] requires actual control of emissions of the pollutant.”

As EPA had also already indicated, the reconsideration states that PSD permitting requirements are triggered, not when a rule is signed or even on the effective date of the rule, but instead when the nationwide controls actually take effect under the rule. In other words, assuming that EPA finalizes the mobile source GHG rule… More

Bad Day at Black (Coal) Rock

Last week, I noted that Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, suggested that, in the short run, the most significant pressure on inefficient energy sources would come, not from climate change legislation or from EPA GHG regulations, but instead from all of the conventional pollutant regulations that EPA expects to promulgate that will make use of coal much more expensive. While Gina was referring to a variety of air regulations, such as CAIR, MACT rules, and SIP revisions following a more stringent PM standard, even Gina may have been too narrowly focused. Today, EPA announced that it… More

PSD Review is a Pre-construction Requirement Not Subject to a Continuing Violation Theory

Last week, Judge John Darrah handed the government a defeat in a PSD/NSR enforcement action, when he ruled that the requirement to obtain permits under the PSD program prior to making major modifications was solely a pre-construction obligation and did not constitute a continuing violation. 

United States v. Midwest Generation was one of the recent wave of government PSD/NSR actions, filed last summer. The problem with the government’s case was that Midwest Generation had purchased the six facilities at issue in the case from Commonwealth Edison in 1999 and all of the alleged changes but one were made prior… More

RGGI’s 7th Auction Brings Total Proceeds to Over a Half Billion Dollars for RGGI States’ Projects

Despite the relatively low clearing prices in the Regional Greenhouse Gas Initiative’s (RGGI) seventh auction of CO2 credits on March 10th — $2.07 for 2009-2011 allowances, and the auction floor price of $1.86 for 2012-2014 allowances – cumulative RGGI proceeds to be used by the 10 participating states for renewable energy, energy efficiency and low-income energy assistance programs now total $582.3 million.

As reported in today’s announcement of the auction results, this half billion dollars is being funneled into state-run programs that make investments in energy efficiency, accelerate the deployment of renewable energy, and, at the bottom line, create… More

Traditional Pollutants Definitely Still Matter: EPA’s Draft Review Recommends More Stringent Particulate Standards

Last week, I posted about improvements in air quality since 1990. It’s a good thing air quality is improving, because, at the same time, the science keeps suggesting that ever lower pollutant levels pose risks to public health. The latest news was EPA’s draft review of the appropriate level at which to set the National Ambient Air Quality Standard for particulate matter.

EPA most recently revised the PM standard in 2006, setting it at 15 ug/m3, notwithstanding the staff recommendation to set the standard at between 13 ug/m3 and 14 ug/m3. As I have discussed, EPA’s decision was struck… More

The Arguments Are All Moot Now: The SJC Upholds the Legislature’s Chapter 91 Amendments

I’ve been waiting to write this headline ever since the SJC took this case. Today, the SJC issued its long-awaited decision in Moot v. Department of Environmental Protection. For those of you who pay attention to where the waters ebbeth and floweth – or at least where they ebbed and flowed in 1641 – you know that this is the second time that Moot has been before the SJC.

After the SJC struck down MassDEP regulations which provided that landlocked tidelands did not need a license under Chapter 91, as the Commonwealth’s waterways statute is now known, the Legislature took a… More

State of the Environment: Pangloss Edition

I know that despair is always more fashionable than optimism, but it is sometimes useful to remember that not everything is going to hell in a hand basket. Yesterday, EPA issued a press release announcing publication of its latest report on trends in air quality. The report, titled “Our Nation’s Air: Status and Trends Through 2008”, makes clear that, overall, air quality has gotten significantly better, particularly since 1990.

What I find most notable is that reductions in NOx largely occurred after 2002, whereas reductions in other pollutants, such as PM and SO2, have occurred since 1990. Notice anything about these dates? After 1990,… More

Today’s Climate Change Grab-Bag

It’s difficult to keep up with the various moves in Congress, attempting either to advance climate change legislation or to preclude EPA climate change regulation. On the advance side, E&E Daily had a very helpful summary earlier this week on the various issues affecting those senators that will need to be brought on board to reach 60 yes votes in the Senate. The identified issues include, not surprisingly: (1) coal, (2) nuclear power, (3) trade-sensitive industries, (4) oil and gas drilling, and (5) sector-specific limits. In what is probably a sidelight to the whole debate, Vernon Ehlers, a Republican, but the first… More

More pressure from Congress on EPA GHG Regulation

Late last week, Senate and House Democrats piled more pressure on EPA’s efforts to regulate greenhouse gases under existing Clean Air Act authority. Senator Rockefeller and Representatives Rahall, Boucher, and Mohollan introduced companion House and Senate bills to preclude EPA regulation of stationary source GHG emissions for two years. Unlike the resolution sponsored by Senator Murkowski, which would simply overturn the endangerment finding and thus preclude all GHG regulation, the new legislation would specifically allow mobile source regulation to proceed.

As long as the White House and important committee chairs oppose the legislation, it still seems unlikely to pass,… More

Put a Price on It

Seemingly just in time to lend support to the revived idea of a carbon tax that we noted on Monday, an Obama Administration inter-agency workgroup has released a report that attempts to do the critical math necessary to put a price tag on CO2 emissions.

The report sets out four dollar figures that represent the “social cost of carbon,” or the potential damages associated with not stopping the emissions of each incremental ton of CO2. The figures, which differ due to the use of different models and discount rates, designed to capture different views about the impact of climateMore

Stop the Presses: Trespass Is Not a Petitioning Activity

Massachusetts has an “anti-SLAPP” statute (as do 26 other states at this point, apparently). The law protects “petitioning”, by precluding litigation targeting petitioning, providing an early motion to dismiss, and awarding attorneys’ fees to defendants where a court finds that the defendants were indeed engaged in petitioning activity.

Yesterday, the Massachusetts Appeals Court struck a blow for reason when it determined, in Brice Estates v. Smith, that a trespass is not protected petitioning activity. Those of you outside Massachusetts may be wondering why we needed a court case to tell us this. Those of you inside Massachusetts, particularly… More

Three Pollutant Legislation: Very Much In Play?

A few weeks ago, I queried whether three pollutant legislation might be back in play, particularly given the current rough sledding for broad climate change legislation. Now, it certainly appears that way. The bill has been formally introduced. In addition to Alexander, there are now three other GOP co-sponsors (Gregg, Graham, and Snowe), not including Senator Lieberman, who is also a sponsor. There will be a hearing on March 4.

The basic provisions are as follows:

Reduction in SO2 emissions of 80% by 2018

Statutory authorization of the CAIR rule through 2011

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Climate Legislation: Still Breathing?

Since I did a post earlier today indicating the cap-and-trade legislation is unlikely to become law in the near term, it’s only fair that I also do a post on efforts by Senators Kerry, Graham, and Lieberman to resuscitate the legislation. The bill’s prospects are too uncertain to spend too much time on the details. In short, it would include a phased-in approach to regulation, starting with the biggest emitters, such as utilities, combined with a carbon tax on transportation fuels that has been supported by several major oil companies.

To me, the most notable statements come from Senator Graham,… More

An Update On EPA GHG Regulation Under Existing Authority

The uncertainty surrounding EPA regulation of GHG emissions under existing Clean Air Act authority was driven home for me last week when the same conference resulted in two diametrically opposed headlines in the trade press. Regarding a forum held by the International Emissions Trading Association, the Daily Environmental Reporter headline was “Existing Law Too Inflexible to Accommodate Market-Based Emissions Cuts, Executives Say.” Over at ClimateWire, the headline was “Some Companies Want EPA to Establish a CO2 Cap-and-trade System.”

Of course, in fairness to the two publications, both headlines are true – and that’s the problem with the current EPA efforts. Notwithstanding… More

More Suits Filed on EPA’s Endangerment Finding

The grand total is 16 separate challenges to EPA’s endangerment finding, according to Greenwire. I’m not one of those lawyers who regularly bash the legal profession. I still recall my law school professor, Henry Hansmann, stating that the role of lawyers is in fact to be transaction-cost minimizers, and I think that that is largely true. That being said, I am certainly wondering what all of this litigation is about.

The endangerment finding is basically a scientific determination. As I have previously noted, EPA discretion in this area is substantial and the likelihood that a court would reverse EPA’s scientific determination… More

The CEQ Issues Draft Guidance on Consideration of Climate Change Under NEPA

Late last week, the CEQ issued its long-awaited draft Guidance on how to factor climate change into NEPA reviews. CEQ explicitly stated the draft is not effective at this time. CEQ will take comment for 90 days and “intends to expeditiously issue this Guidance in final form” after close of the comment period. Assuming CEQ does so, it will join several states, including California, New York, and Massachusetts, which already require that climate change be addressed in their state NEPA analogues.

The draft is very limited in scope at this point; CEQ may have decided that what is most… More

Dog Bites Man, February 12 Edition: Law Suit Filed to Challenge Endangerment Filing

Earlier this week, the Southeastern Legal Foundation filed a petition for review of the EPA Endangerment Finding with the District of Columbia Court of Appeals. It’s not really surprising that someone filed suit, but the list of plaintiffs is interesting – though more for who is not on it than who is. There is not a single Fortune 500 company on the list of plaintiffs. Whether that speaks to the larger corporations doubting the merits of the challenge or simply making a strategic decision that it is not worth it to be associated with the litigation, I leave for them to… More

SEC Issues Climate Change Disclosure Interpretive Release

For those of you who missed it, the SEC finally issued an interpretive release last week clarifying public company disclosure obligations concerning climate change. Rather than rehash it here, I am instead linking to the client alert that we did on the topic.

It is worth noting that, as mentioned in the alert, the release has engendered significant political controversy. Indeed, ranking member Spencer Bachus sent a letter to the SEC questioning the appropriateness of the release. My favorite question in the letter:

Do you believe the Commission’s role is to promote a social policy agenda through the securities laws… More

Three Pollutant Legislation: Back in Play?

While Congress may be fiddling on climate legislation, Senators Carper and Alexander are attempting to put three pollutant legislation back on the congressional agenda. Yesterday, they introduced an aggressive three pollutant bill. Here are the highlights. The bill would:

Codify the CAIR program through 2011

Gradually reduce the cap on SO2 emission allowances to 1.5 million tons by 2018 – substantially more stringent than the CAIR would have imposed.

Reduce NOx caps to 1.6 million tons by 2015.

Create two NOx trading zones. Zone 1 includes 32 Eastern states and the District of Columbia. Zone 2… More

EPA “Furious”: GHG Rules to Be Promulgated in March

Given the stories this week of continuing efforts in Congress to preclude EPA from regulating GHGs under existing Clean Air Act authority, I couldn’t resist this headline. 

The first story is that three House members, including two Democrats (House Agriculture Committee Chair Collin Peterson and Missouri Rep. Ike Skelton) have followed the lead of the Senate – where there are also Democratic sponsors – and introduced legislation preventing EPA regulation. According to Representative Skelton, the bill would “get the EPA under control.”

In light of the efforts in Congress, it just seemed too perfect not to note that EPA’s… More

More on a New Ozone NAAQS: EPA’s Clean Air Science Advisory Committee Endorses EPA’s Proposed Range

As we noted a few weeks ago, EPA has proposed lowering the NAAQS to a range of from 0.060 ppm – 0.070 ppm. Earlier this week, EPA’s Clean Air Science Advisory Committee, or CASAC, met and endorsed EPA’s proposed range. Some CASAC members did express concern about EPA’s proposed secondary seasonal standard, intended to protect crops and forests. However, overall, the CASAC seal of approval is pretty much the end of this argument.

It is important to recall how we got here. CASAC already endorsed the 0.060 ppm – 0.070 range several years ago, before EPA’s last ozone standard was issued. It… More

Coming Soon to a 10-K Near You: Climate Risks

The U.S. Securities and Exchange Commission (SEC) issued interpretive guidance yesterday which requires publicly traded companies to consider the impacts of climate change – both the physical damage it could cause, as well as the economic impacts of domestic and international greenhouse gas emissions-reduction rules – and disclose those risks to investors. As we noted when discussing the potential for this announcement in October, the disclosure requirements are likely to affect companies in a wide range of industries.

In its press release announcing this decision, the SEC said that this interpretive guidance neither creates new legal requirements… More

Will We Have Neither Climate Change Legislation Nor Regulation?

Last month, I noted with some trepidation that EPA Administrator Jackson had stated that "I don’t believe this is an either-or proposition," referring to the possibility that there could be both climate legislation and EPA regulation of GHGs under existing EPA authority. Today, it’s looking more like a neither-nor proposition.

First, with respect to the prospects for climate change legislation, Senator Gregg was quoted in ClimateWire as saying that “the chance of a global warming law passing this year was ‘zero to negative 10 percent.’" Whether Senator Gregg has the odds pegged exactly right, legislation certainly seems less likely than… More

The SJC Gets MEPA Wrong Yet Again

I have never been a fan of specialized courts, but I have to admit that the Massachusetts Supreme Judicial Court’s MEPA jurisprudence is strong evidence for the other side. It’s almost hard to describe how badly the SJC has mangled MEPA. The most recent example is yesterday’s decision in Town of Canton v. Commissioner of the Massachusetts Highway Department. (Requisite disclaimer – this firm represented the Town of Canton in the case.)

In Canton, the SJC ruled that a party bringing suit to challenge the adequacy of the Certificate issued by the Secretary of Energy and… More

Believe It Or Not, Sometimes MassDEP Does Things of Which the SJC Does Not Approve

Those of us who advise clients regarding compliance with environmental regulations have often been in the awkward position of agreeing with clients that the agency position is, shall we say, misguided, yet at the same time advising against legal challenge, because the judicial review deck is stacked so heavily in favor of the agency. (In another time or place, one might ask why this is so.)

Nevertheless, occasionally, the agency loses and, when it does, that loss can be instructive. Yesterday, the Massachusetts Supreme Judicial Court ruled that MassDEP may not impose conditions on registrations under… More

BACT Update: Is BACT for a Coal Plant Natural Gas?

Last week, I reported on a decision by EPA Administrator Jackson, in an appeal from a permit issued by the Kentucky Division of Air Quality, to the effect that the developer of an Integrated Gasification Combined Cycle (IGCC) plant, which converts coal to gas for combustion, had to consider use of natural gas as BACT, because the plant already had plans to use natural gas as a startup and backup fuel.

This week, Administrator Jackson went one step further – granting an objection to a permit for a traditional coal plant in Arkansas on the ground that… More

Tailoring Rule Update: Just the Mess Everyone Expected

Last April, I noted that the one certainty associated with EPA regulation of greenhouse gases under existing Clean Air Act authority was that there would be unintended consequences. If anyone doubted that this would be so, they might want to read some of the comments submitted to EPA in connection with EPA’s proposed Tailoring Rule, which would exempt facilities emitting less than 25,000 tons per year of CO2e from the PSD provisions of the Clean Air Act after CO2e becomes a regulated pollutant under the CAA.

Greenwire has a helpful collection of some of the more notable comments. What… More

Dog Bites Man; Compliance With New NAAQS To Be Costly, Difficult

As I noted on Friday, EPA has proposed to revise the NAAQS for ozone to a range of from 0.060-0.070 ppm, a reduction from the 0.075 ppm standard promulgated in 2008 by the Bush administration.  EPA’s analysis of the available date indicates that 650 counties – out of 675 counties which have ozone monitors – would be in violation of a 0.060 ppm standard. For those counting, that’s more than 96% of all counties in nonattainment. Even if the standard were set at 0.070 ppm, 515 counties would be in non-attainment.

In fact, EPA estimates that, even by 2020, 203… More

Coming Soon to a Vista Near You: Clearer Air; More Expensive Compliance

On Wednesday, EPA released a proposal to reduce the primary National Ambient Air Quality Standard for ground-level ozone from the 0.075 ppm standard set by the Bush administration in 2008 to a range of from 0.060-0.070 ppm. EPA also proposed to set a secondary standard intended to protect sensitive ecological areas, such as forests and parks.

As almost everyone knows, the 2008 standard was, to put it mildly, controversial from the start. The proposal today was based on recommendations made to EPA by its science advisors prior to the 2008 rulemaking. Following apparent intervention from the White House,… More

Massachusetts Releases First in the Nation Ocean Management Plan

Earlier this week, Energy & Environmental Affairs Secretary Ian Bowles announced the release of the nation’s first ocean management plan. The plan is similar, but not identical to, the draft plan issued last July. Here are the highlights:
A Prohibited Area off the coast of the Cape Cod National Seashore, where most uses will be – you guessed it – prohibited
Multi-Use Areas, constituting approximately two-thirds of the planning area, where uses will be permitted if they comply with stringent standards for protecting marine resources
Renewable Energy Areas, where commercial- and community-scale wind projects have been found to be appropriate.

When Do EPA BACT Requirements “Redesign the Source”? Not When EPA Says They Don’t

Shortly before the holidays, EPA Administrator Jackson issued an Order in response to a challenge to a combined Title V / PSD permit issued by the Kentucky Division for Air Quality to an Integrated Gasification Combined Cycle, or IGCC, plant. The Order upheld the challenge, in part, on the ground that neither the permittee nor KDAQ had adequately justified why the BACT analysis for the facility did not include consideration of full-time use of natural gas notwithstanding that the plant is an IGCC facility. 

The Order may not be shocking in today’s environment – all meanings… More

EPA Continues to Target Coal-Fired Power Plants: Announces Settlement With Duke Energy

EPA announced yesterday that it had reached a settlement with Duke Energy to address allegations of New Source Review violations at Duke’s Gallagher coal-fired generating plant in New Albany, Indiana. A jury had already found Duke liable for certain NSR violations at the plant. The settlement obviates the need for a remedy trial, which had been scheduled for early 2010.

The settlement requires Duke Energy to repower Units 1 and 3 at Gallagher with natural gas or shut them down and to install emission controls at Units 2 and 4. Duke will also pay a $1.75 million penalty and spend… More

Not Quite the Excitement of a Perp Walk, But: EPA Publishes Web Map of Enforcement Actions

EPA has published its annual Compliance and Enforcement Annual Results FY 2009. It always makes interesting reading. This year, EPA has added something new: a web-based map showing the location of all enforcement actions, with links to summaries of the specific actions taken. It’s actually a little tricky to navigate. I had to find an area of interest and zoom in far enough for the dots to be replaced by flags to be able to click on particular sites and obtain the detailed information.

I can see NGOs making a lot of use of… More

Nanotechnology: EPA Regulations on the Horizon?

Earlier this month, EPA released its semi-annual regulatory agenda. True policy wonks can review the agenda here. There are always some nuggets buried in the agenda. This agenda includes two proposed rules governing nanotechnology. They are:

A reporting rule under § 8(a) of TSCA. The rule would require persons who manufacture nanoscale materials to notify EPA of information concerning production volume; methods of manufacture and processing; exposure and release information; and available health and safety studies.

A test rule under § 4(a) of TSCA. The proposed rule would apply to “certain multi-wall carbon nanotubes and nanosized clays and alumina.”

More

Dog Bites Man, Monday Edition: Massachusetts Retains Its Municipal Waste Combustor Moratorium

As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting.

The announcement says nothing about new technologies, such as plasma arc gasification. Arguably, such a technology is not “incineration” or “combustion,” so we’ll have to see whether the administration remains open to such alternatives to traditional incineration.

The administration emphasized that it is committed… More

Climate Change Legislation Makes Strange Bedfellows: Environmentalists for Nuclear and Coal

Yesterday, Senators Kerry, Graham, and Lieberman sent to President Obama a “framework” for Senate climate change legislation. The framework is short on details and does not contain many surprises. For example, it proposes “near term” – near team is undefined – reductions of 17% from 2005 levels and “long-term” – also undefined – reductions of 80%. 

The framework is nonetheless noteworthy, particularly for its inclusion of strong support for both the coal and nuclear industries. Senator Kerry was must have loved writing “Additional nuclear power is an essential component of our strategy to reduce greenhouse gas emissions.” And this: “We will commit significant resources… More

So We’re Endangered by GHGs: Now What?

As anyone not hiding under a rock has by now probably realized, EPA officially announced Monday that it has concluded that GHG from human activity threaten public health and the environment. Since the announcement was not exactly a surprise, the question remains what impact it will have.

In the short run, the timing certainly seems intended to coincide with the Copenhagen talks and help to demonstrate to other nations that the U.S. is taking concrete steps to address climate change. We’ll see shortly how successful the endangerment finding is in that respect.

Since I spend most of my time down… More

RGGI’s 6th Auction: For 2012, Supply Outnumbers Demand

The states participating in the Regional Greenhouse Gas Initiative (RGGI) announced the results of their 6th quarterly auction, held on December 2nd, which brought in the lowest prices for carbon dioxide (CO2) allowances yet. Wednesday’s auction also marks the first time that RGGI allowances offered for sale outnumbered demand. Only 1.6 million of the roughly 2.1 million allowances for the 2012 vintage sold at RGGI’s required price floor of $1.86. Depending on each state’s regulations, these unsold allowances may be sold in future auctions, or a state may choose to retire them. Although retirement this early in the… More

Another Rant Against NSR: Why the Continued Operation of Old Power Plants Is Bad News for GHG Regulation Under the Current Clean Air Act

According to a report released last week by Environment America, power plants were responsible for 42% of the CO2 emitted in the United States in 2007, substantially more than any other sector, including transportation. What’s the explanation? Largely, it’s the age of the United States power plants. The report, based on EPA data, states that 73% of power plant CO2 emissions came from plants operating since prior to 1980.

What’s the solution to this problem, in the absence of cap-and-trade legislation enacting? EPA’s already told us, and we shouldn’t be surprised – promulgation of EPA’s “Tailoring Rule,” subjecting existing facilities emitting more… More

A Follow-up On Regulatory Reform in Massachusetts: Secretary Bowles Starts to Get Some Suggestions

As I discussed last week, in response to the current dire state fiscal outlook, Massachusetts Secretary of Energy & Environmental Affairs Ian Bowles announced, pursuant to a request from Governor Patrick, a search for “options for departmental reorganization and consolidation, streamlined operations and procedures, and new models for doing the public’s business.” Given that Secretary Bowles has invited public assistance, it should not be too surprising that some folks have stepped up to the plate, so I thought I would share submittals that I have seen. 

Recently, both NAIOP and the Environmental League of Massachusetts have made suggestions to… More

EPA Issues Construction Stormwater Rule — First National Standards With Numeric Limits

Yesterday, EPA released its effluent guidelines for construction sites. The guidelines establish the first national standard containing numeric limitations on stormwater discharges. The final standard imposed is 280 nephelometric turbidity units. It will apply to all construction sites greater than 20 acres in size as of 18 months following the effective date of the regulations (which will be 60 days after Federal Register promulgation) and sites larger than 10 acres 4 years after the effective date.

As expected, EPA did not take NRDC and Waterkeeper Alliance up on their suggestion that EPA impose post-construction controls. However, since EPA has… More

More on Building Standards; Client Rant Edition

Following my post yesterday about the E.U. construction standards directive, I received the following two emails from my friend and client Lydia Duff.

Given what people until very recently were paying for in their home purchase decisions, and builders were providing — e. g. Cathedral ceilings, minimal insulation, no double paned windows, huge foot prints and cheap construction — it seems that rulemaking to impose more energy efficient building prototypes is just what we deserve. Zero will be hard to get to but I think we’re a long ways from technical impracticability at this point. 

Why can’t they make as… More

Today’s Betting Line: EPA Regulation Before Legislation is Enacted

Boston Celtics’ fans know the phrase “fiddlin’ and diddlin.” Well, the Senate continues to fiddle and diddle over climate change legislation. Those who have worked with Gina McCarthy, current EPA air chief, know that she has probably never fiddled or diddled in her life, and I certainly don’t expect her to do so with respect to GHG regulation under existing Clean Air Act authority in the absence of comprehensive legislation. As a result, it now seems likely that EPA will be issuing climate change regulations before any legislation is enacted.

What’s the basis for this conclusion? First,… More

Desperate Times, Desperate Measures? Massachusetts Environmental Agencies Look to Reinvent Themselves

On the be careful what you wish for front, Massachusetts Energy and Environment Secretary Ian Bowles announced yesterday an effort to examine “options for changes in administrative structures and programs to meet environmental goals in light of budget challenges.” The announcement identifies three separate areas of investigation:

Public-Private Partnerships – This makes a lot of sense, but, based on the announcement, seems to be too narrowly focused. The announcement indicates that the review will focus on management of properties owned by the Department of Conservation and Recreation. However, we shouldn’t just be looking at whether to let Disney sponsor the… More

Another Corner Heard From: Portland (Oregon) Releases a New Climate Action Plan

Last week, the City of Portland, Oregon (together with Multnomah County) released an updated Climate Action Plan. The Plan presents a number of aggressive goals and targets, with ultimate goals of GHG reductions of 40% by 2030 and 80% by 2050.

The details of the Plan are obviously only relevant to those in the Portland area, but for those anticipating what regulation might look like in California, Massachusetts, and other states that have enacted or will soon enacted some version of a Global Warming Solutions Act, the Plan provides a helpful catalogue of the types of changes that might… More

SEC Reverses Bush Policy on Climate Risk in Shareholder Resolutions

The US Securities and Exchange Commission released a staff bulletin yesterday that reverses a Bush administration policy that excluded shareholder resolutions which asked companies to disclose their climate-related financial exposure. While not the rule-making we discussed last week, this could be a significant change for the boards of large companies who may now be forced to respond to shareholder concerns about the risks that greenhouse gases and climate change can create.

The Bulletin states that going forward, the Corporation Finance Division will no longer automatically allow the exclusion of proposals that deal with the evaluation of risk,… More

Perhaps The Next Coastal Project Won’t Take 10 Years: The First Circuit Preempts Some State Authority

Public and private developers spend a lot of time talking about NIMBY, or Not In My Backyard. With the increasing number of coastal development projects, ranging from wind farms to LNG facilities to plans for casinos, we should perhaps be talking about another acronym: NIMO, or Not In My Ocean. Yesterday, a decision from the First Circuit Court of Appeals in Weaver’s Cove LNG v. Rhode Island Coastal Resources Management Council gave some hope that NIMO will not mean that states can simply squelch development of ocean resources.

Weaver’s Cove, as originally… More

Another Front in the Climate Change Battle: NEPA Reviews

Waxman-Markey. Boxer-Kerry. Public nuisance litigation. EPA regulation under existing authority. What’s next in the arsenal of weapons against climate change? How about including climate change impacts in reviews under NEPA?

In February 2008, the International Center for Technology Assessment, the Natural Resources Defense Council, and the Sierra Club petitioned the CEQ to “clarify” its regulations to require the assessment of potential climate change impacts in environmental reviews performed under NEPA. CEQ has not yet formally responded to the petition, but that hasn’t stopped noted environmentalist Senator James Inhofe (R. Okla.) from weighing in preemptively. Calling NEPA a “bedrock environmental statute,” Senator Inhofe has informed Nancy… More

Climate Risk Disclosures — Coming Soon to a 10-K Near You?

The U.S. Securities and Exchange Commission is re-examining its rules regarding whether companies should or must disclose climate change related risks. According to an article in ClimateWire, revisions could be issued by the end of October. On Friday, SEC Commissioner Elisse Walter said that SEC staff are working on preparing recommendations, and two options are still on the table. One option is a rule-making that would set specific rules for disclosing climate risks. The other would be a re-interpretation of Form 10-K disclosure rules to require companies to disclose and comment on operations tied in with mitigating climate-change risks.

More

EPA Issues a New Policy on Superfund Negotiations: Time For Another Rant?

Late last week, Elliott Gilberg, Acting Director of EPA’s Office of Site Remediation Enforcement (OSRE) issued an Interim Policy on Managing the Duration of Remedial Design/Remedial Action Negotiations. Members of the regulated community may not be surprised by the contents of the memo, but they certainly will not be pleased. In brief, the memorandum fundamentally makes two points:

EPA wants to shorten the duration of RD/RA negotiation

EPA is going to use the heavy hammer of unilateral administrative orders, or UAOs, to keep PRPs’ feet to the fire and ensure that negotiations move quickly.

PRPs will likely… More

GHG Regulation under the Existing CAA: Coming Soon to a [Large] Stationary Source Near You

On Thursday, EPA issued its long-awaited proposed rule describing how thresholds would be set for regulation of GHG sources under the existing Clean Air Act PSD authority. Having waded through the 416-page proposal, I’m torn between the appropriate Shakespeare quotes to describe it: “Much ado about nothing” or “Methinks thou dost protest too much.”

First, notwithstanding its length, the proposal is quite limited in scope. In essence, it has three parts:

Establishment of an applicability threshold for PSD and Title V purposes of 25,000 tons per year of CO2e.

Establishment of… More

I’m Not Dead Yet: Still Hope For a Climate Change Bill?

After a number of stories indicating that the prospects for climate change legislation were dimming for 2009, the convergence of a number of factors suggests that legislation may still be possible.

Yesterday, Senator Boxer and Senator Kerry released a draft of climate change legislation. This doesn’t mean that Senate passage is imminent. The bill has not been formally introduced and, like the early drafts of the Waxman-Markey bill, leaves some sections blank. Senator Boxer apparently intends to issue a mark-up of the bill sometime in October. One note for the politically-minded readers of this blog – just don’t call the… More

EPA Mandatory Greenhouse Gas Reporting Rule is Final, Reporting Begins in 2010

EPA released its final version of the Mandatory Greenhouse Gas Reporting Rule today.  The Rule (which we blogged about in its draft form here) will require large emitters of greenhouse gases to begin collecting emissions data on January 1, 2010 and file their first self-certified reports in March 2011.  The EPA will then verify the data, as in other Clean Air Act programs. The new program will cover approximately 85% of the nation’s greenhouse gas emissions and apply to roughly 10,000 facilities, down from the 13,000 that EPA had predicted in its draft rule in March.

The rule has changed… More

Another Nuisance For the Generating Industry: The 2nd Circuit Reinstates the GHG Public Nuisance Suit

On Monday, the Court of Appeals for the 2nd Circuit finally issued a decision in Connecticut v. American Electric Power Company, reversing the District Court decision which had dismissed this public nuisance law suit against six large generating companies. The decision is notable in a number of different respects and may have far-reaching implications

Standing. Following Massachusetts v. EPA, it is not really surprising that the plaintiffs were able to establish that they have suffered injuries sufficient to provide standing. The more questionable point is redressability. The Court acknowledged that it must be “likely” that the injury will be redressed… More

Another Bullet Aimed at Coal; Another Argument For Multi-pollutant and Multi-media regulation

On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly surprising, given the ongoing study and given that EPA has not revised the guidelines since 1982. Indeed, notwithstanding EPA’s announcement, Environmental Integrity Project, Defenders of Wildlife and Sierra Club announced that they would still sue EPA over its failure to timely update the guidelines.

More

New England Governors Adopt Renewable Energy Blueprint

As BNA reported this morning, at yesterday’s Conference of New England Governors and Eastern Canadian Premiers in New Brunswick, the six New England governors adopted The New England Governors’ Renewable Energy Blueprint.  Through this plan, the governors of Maine, Massachusetts, Connecticut, New Hampshire, Rhode Island and Vermont agreed to speed regional development of renewable energy by coordinating state reviews of proposed interstate transmission lines and synchronizing solicitation and decisions on power procurement and long-term energy contracts.  The blueprint calls for states to hold joint hearings and coordinate decisions when appropriate, but even using common applications and timelines could have… More

Climate Change: An Update on Legislation v. Regulation

The silence from Congress recently concerning climate change legislation has been deafening. The continued health care debate does not bode well for early passage of the Waxman-Markey bill. Meanwhile, EPA is not sitting on its hands.

Daily Environment Report noted last week that EPA has sent to the OMB a proposal to reverse the Agency’s policy that CO2 is not a pollutant subject to the PSD provisions of the Clean Air Act. Also last week, Greenwire reported that: “As Hill debate flounders, EPA plows ahead on emissions rules.” [And for those of you who can’t get enough of the debate between “founder” and… More

Another D’Oh Moment: EPA Advised to Clearly Link Environmental Conditions and Regulatory Programs

While many people today look to the Daily Show and the Colbert Report for political commentary, the Boston Red Sox leave me with insufficient TV time, so I rely on the Borowitz Report. Whenever the press reports as news something blindingly obvious to normal Americans, Borowitz will refer to the statement as having been authored by D’Oh Magazine.

Last week, in a story that should have been reported in D’Oh Magazine, a Daily Environment Report headline stated that the “Link Between State of Environment, Agency Actions Should be Clear,… More

RGGI Prices Fall Again in 5th Auction: $2.19 and $1.87

The Regional Greenhouse Gas Initiative (RGGI) has released the clearing prices from its 5th quarterly auction of CO2 allowances, held on September 9, 2009.  Prices for the 28.4 million 2009 vintage allowances sold fell sharply from the June auction’s clearing price of $3.23 to $2.19, and the 2.1 million 2012 vintage allowances sold for only $1.87, just one cent above the market floor of $1.86, and well below the $3.05 that they earned at the March 2009 auction, which was the first at which these later vintage allowances were offered for sale. 

Interestingly, while the number of participants in… More

New Life in EPA’s NSR Enforcement Initiative: EPA FIles Another Law Suit

In another sign that the NSR program is alive and well under the Obama administration, the United States (together with the State of Illinois, filed suit Thursday against Midwest Generation, alleging violations of NSR requirements at six coal-fired power plants. Although the action is not too surprising, given that the Bush EPA had issued a notice of violation to Midwest Generation in 2007, it remains noteworthy. Each new prosecution serves to remind generators that failure to comply with NSR rules can lead to significant costs.

Of course, that in terrorem effect on other generators is precisely what the administration and environmental… More

Is it Good News or Bad? MassDEP Wins an Adjudicatory Hearing Appeal

Although not breaking any new ground, a decision from the Massachusetts Appeals Court last week provides a helpful summary of the discretion typically given to MassDEP in making permitting decisions. In Healer v. Department of Environmental Protection, abutters to a proposed wastewater treatment facility in Falmouth sued MassDEP, claiming that the groundwater discharge from the leach field associated with the facility would damage drinking water supplies and nearby wetlands. The Court affirmed the MassDEP Commissioner’s rejection of the abutters’ challenge.

As the Court noted

the “applicable standard of review is “highly deferential to the agency” and requires the reviewing… More

New Clouds on the Storm(water) Front: EPA Takes Enforcement Action Against 9 Municipalities

As we have reported, EPA and MADEP have both been taking steps over the past year to broaden the scope of their stormwater programs beyond existing regulation under the rules concerning stormwater discharges associated with industrial or construction activity. EPA has proposed using residual designation authority in Maine and Massachusetts and the MADEP proposed sweeping rules governing existing private facilities.

In the regulated community, there has been substantial concern that these efforts have focused too narrowly on private properties, with the MADEP proposed rules, for example, potentially requiring costly retrofits on many properties without consideration of whether there… More

Stormwater Discharges From Construction Activity: What Next From EPA?

Construction and development companies praying for an economic recovery next year have something else to worry about: pending new EPA regulations regarding stormwater discharges from construction activities – and claims from environmental groups that EPA’s proposal isn’t stringent enough.

EPA issued a proposal on November 28, 2008. That proposal is complex, but the aspect of it that has received the most attention is the requirement that certain construction sites greater than 30 acres meet numerical turbidity limits (specifically, 13 nephelometric turbidity units (NTUs), which I had to include in this post just because it sounds so cool). Developers have opposed the… More

Measuring the Benefits of Environmental Enforcement: Moving From Dollars To Sense

I assume that environmental agencies’ focus on the annual dollar total of enforcement fines and penalties drives my clients as crazy as it does me. After all, the correlation between such figures and any environmental outcomes is pretty limited. Indeed, less enforcement may mean more compliance rather than more undetected violations.

It thus comes as at least limited good news from Inside EPA that EPA is looking at ways to measure the impact of enforcement efforts other than by measuring the amount of fines and penalties. Instead, as indicated by a presentation made last month by EPA’s Office of Compliance,… More

EPA Might Require More Airborne Lead Sampling

EPA announced this week that it was granting a petition for reconsideration of the final National Ambient Air Quality Standards for lead, specifically the portion requiring monitoring of lead emissions near certain sources. The petition was brought in January by a number of environmental organizations and groups concerned about childhood lead poisoning.

The existing lead monitoring requirements were finalized in October 2008, at the same time that EPA tightened the national air quality standards for lead for the first time in 30 years. EPA reports that the revised standards are 10 times more stringent than the previous standards and… More

New York Joins the Bandwagon: Incorporating GHG Analysis Into Reviews of New Project Development

As most readers know, Massachusetts and California have been leading the pack in requiring analysis of greenhouse gas impacts in connection with reviews of new development. Now, New York State is catching up. This week, the Department of Environmental Conservation, or DEC, released its Policy on Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements. The policy is certainly similar to the Massachusetts Greenhouse Gas Emissions Policy and Protocol. Nonetheless, the DEC Policy has a few items worth noting.

DEC has provided that, with respect to indirect GHG emissions from: (1) off-site energy generation and (2) vehicle trips,… More

D.C. Circuit Remands Phase 2 Ozone Rule: Another Defeat for Cap and Trade Programs

Last Friday, in NRDC v. EPA, the Court of Appeals for the D.C. Circuit struck down parts of EPA’s Phase 2 rule for achieving compliance with the ozone NAAQS. The most important part of the ruling was the Court’s conclusion that EPA could not rely on compliance with the NOx SIP Call to satisfy the requirement that sources in an ozone nonattainment area demonstrate achievement of reasonably available control technology, or RACT. The basis for the decision was the Court’s conclusion that the plain language of the relevant portions of the CAA did not allow use of… More

Is CO2 a Regulated Pollutant Under the Clean Air Act? Not Yet, At Least in Georgia

Earlier this week, the Georgia Court of Appeals reversed a decision of the Superior Court in Georgia that would have required Longleaf Energy Associates, developer of a coal-fired power plant, to perform a BACT analysis of CO2 emissions control technologies in order to obtain an air quality permit for construction of the plant. The case is a reprise of the Deseret Power case regarding a coal-fired plant in Utah.

The court in Longleaf Energy concluded that CO2 is not yet a regulated pollutant under the CAA, and thus that no BACT analysis… More

House Energy & Climate Bill: The Renewable Electricity Standard

Congress moved one step closer to adopting a federal renewable electricity standard ("RES") with the narrow passage of the American Clean Energy and Security Act by the House.  Twenty-nine states already have adopted some form of renewable energy portfolio standard, but a federal RES is widely thought to be important for creating a national renewable energy and energy efficiency market.  The House RES establishes a national compliance obligation overseen by the Federal Energy Regulatory Commission (“FERC”) under which large retail electricity suppliers (“Suppliers”) are required to invest in renewable energy and energy efficiency. For… More

Massachusetts Finalizes Global Warming Solutions Act Reporting Regulations

The Massachusetts Department of Environmental Protection (DEP) yesterday published a final amendment to the first set of Global Warming Solutions Act regulations, 310 CMR 7.71.  These regulations set a baseline for Massachusetts’ 1990 emissions and create a reporting system that will track emissions going forward, providing a framework for economy-wide reductions of 10% to 25% by 2020 and 80% by 2050.  The regulations are the first phase of implementation of the Global Warming Solutions Act, passed last August, which, at the time, called for the largest cuts in greenhouse gas reductions seen in the nation.

In short, the reporting regulations… More

The House Climate Bill: at 1,428 Pages, Nearly Something for Everyone

The House of Representatives narrowly passed H.R. 2454, the American Clean Energy and Security Act of 2009 by a vote of 219-212 on Friday, June 26.  The bill, the first piece of major legislation on global warming that has passed either house of Congress, is 1,428 pages long, and includes 5 titles covering everything from renewable energy and efficiency to adaptation and transitioning to a clean energy economy.  While it retains many key concepts from the draft introduced by Representatives Henry Waxman and Edward Markey, some of revisions and additions that ensured its passage were significant and have generated… More

Ocean Zoning Gets Off the Ground in Massachusetts

This week, the Massachusetts Executive Office of Environmental Affairs announced release of the draft Ocean Management Plan, developed pursuant to the Oceans Act of 2008. The draft Plan has gotten most press for its identification of specific areas for off-shore wind energy development – as well as its prohibition of wind farms in other areas, including the area of the proposed Buzzards Bay wind farm. EOEEA Secretary Ian Bowles was quoted as saying that Buzzards Bay is too crowded and sensitive for the development of large-scale wind farms.

The Plan is about much more than wind farms, however. It really… More

RGGI’s 4th Auction: Allowance Prices Decrease for Both 2009 and 2012 Allowances

At the fourth auction of CO2 allowances under the Regional Greenhouse Gas Initiative (RGGI) on June 17, participation was certified as robust by market monitor Potomac Economics, but auction prices decreased. Last week’s clearing price for 2009 vintage CO2 allowances was $3.23 per allowance, only slightly above the clearing price of $3.07 at RGGI’s initial auction in September 2008, and below March’s clearing price of $3.51.  The 2.1 million 2012 vintage allowances offered for sale in last week’s action sold for $2.06, almost one-third below the $3.05 price that they earned at the March auction, which was the first at which… More

Next Battle in the Property Rights War?

In 1992, in South Carolina Coastal Council v. Lucas, the Supreme Court held that a state statute or regulation that denies a property owner all economic use of her property requires payment of just compensation under the Takings Clause. The Court distinguished statutes and regulations from restrictions inherent in background principles of the common law of nuisance – the latter types of restrictions do not require just compensation.

The Supreme Court announced earlier this week that in the fall 2009 term it will hear another, similar, property rights case. The Court will hear an appeal of a decision by the… More

RGGI Releases Model Applications for Offsets: Can Anyone Qualify?

Thinking about how to take advantage of funding for energy efficiency retrofits from the federal stimulus package, state-level programs like Massachusetts’ Green Communities Act, or even utility-funded programs?  You should also think about whether your actions will create another income stream – offsets under the Regional Greenhouse Gas Initiative (RGGI) – and whether taking funds will prohibit the creation of offsets when the project is finished.

RGGI, Inc. this week released model applications for offset projects which could create interesting incentives if implemented by each of the RGGI states. Unlike some of the offset provisions proposed under ACES, all of the… More

(Possibly) Coming Soon: House Floor Vote on Waxman-Markey Energy Bill

According to a quote from House Energy and Commerce Chairman Henry Waxman in an E&E article this morning, the Waxman-Markey bill could reach a floor vote inside of 3 weeks.  Speaker Pelosi had set a deadline of next Friday, June 19, for the 8 House Committees still evaluating HR 2454 to conclude their review, but has not indicated when Democrats will bring the legislation to the House floor.  Waxman said yesterday that he wants debate to begin on June 22 and the bill to go to a vote before the July Fourth recess — "I think the speaker and the majority… More

Next on the Federal Agenda: Ocean Zoning

I know it’s hard to believe, but some of you may not have realized that today is World Oceans Day. In connection with World Oceans Day, Senator Jay Rockefeller has written a letter to the White House in support of the concept of “ocean zoning.” Senator Rockefeller will also be holding hearings on the issue tomorrow. Among those testifying will be Deerin Babb-Brott, who is the Assistant Secretary in the Massachusetts Executive Office of Environmental Affairs and is in charge of Massachusetts’ first in the nation ocean zoning effort.

The Massachusetts effort is based on the Oceans Act of 2008,… More

Fixing CAIR; Legislative Help May Be Necessary

In Congressional testimony last month, EPA Administrator Lisa Jackson apparently told Congress that amendments to the CAA may be necessary in order to ensure that any revised CAIR rule issued by EPA would be safe from legal challenge.  The testimony is not really a surprise. Anyone reading the decision striking down the original CAIR rule would understand that the Court had concluded that the cap-and-trade program promulgated under CAIR was not authorized by the CAA.

Like the situation posed by EPA’s obligation to address climate change endangerment following the Supreme Court decision in Massachusetts v. EPA, the threat of further… More

Secret Winner from ACES: Coal-Fired Power Plants?

As highlighted in yesterday’s issue of Greenwire, one of the controversial aspects of the  American Clean Energy and Security Act (ACES) passed by the House Energy & Commerce Committee last night is that 35% of the allocated allowances created in the cap-and-trade program will go for free to the electric power industry.  30% will go to Local Distribution Companies, or LDCs, traditional regulated utilities who sell power directly to consumers, and 5% will be allocated to independent merchant energy generators that sell power to wholesale power markets, primarily in the Northeast, Great Lakes, California and Texas.

Not surprisingly,… More

A Late Entry Into the Climate Change Sweepstakes: The Midwestern Greenhouse Gas Accord Cap-and-Tax Approach

Apparently in an effort to demonstrate to Congress that coal states also support greenhouse gas regulation, the Midwestern Greenhouse Gas Reduction Accord last week released draft design recommendations for a GHG program. Several facets of this announcement are interesting:

The Waxman-Markey bill would basically preclude the MGGRA from implementing its program. If the point of the effort is to demonstrate to Congress that coal states indeed do support GHG regulation, they might be more successful if they had managed to bring Indiana and Ohio into the fold. The program as tentatively proposed would include a cap-and-tax approach, in… More

Massachusetts Still Moving Aggressively on the Green Building Front: Now a Stretch Building Code

The competition between the states on who can move more aggressively in regulating greenhouse gases continues. Earlier this week, the Massachusetts Board of Building Regulations and Standards voted to approve a “Stretch” Building Code. The Stretch Code can be adopted locally by municipal option. Where adopted, buildings will have to be 20% more efficient than what would be required under the ASHRAE 2007 standard.

Since there was some ambiguity previously, let me be clear: I’m not a supporter of the stretch code. It’s one thing for states to regulate greenhouse gases in the absence of an active federal program. Even state and interstate… More

Nearing Agreement on a House Climate Bill?

Are Representatives Waxman and Markey near settling on language that will get a majority in Committee for the climate change bill?  The tenor today was significantly more positive than in the past few weeks.  An update seemed worthwhile, given the number of specific provisions on which agreement has apparently been reached.

The initial CO2e reduction goal will be 17% over 2005 levels by 2020.  This compares to 14% sought by the President and 20% in the original draft bill. 35% of allowances would be distributed to local distribution companies and 15% of allowances would be distributed to industries subject… More

More on Guidance v. Regulation

Laura Rome of Epsilon has helpfully reminded me that the maturity of a regulatory program is also relevant to whether an agency should proceed by guidance or regulation.  With newer programs that remain in flux, the flexibility inherent in guidance – and the easier amendment process for guidance – counsels in favor of guidance rather than regulation.

Laura’s comment also reminded me that, a few years ago, NAIOP was sufficiently concerned about MassDEP’s use of guidance as an end-run around the formality of the regulatory process that it submitted to MassDEP suggested “Guidance on Guidance.”  The overarching… More

Regulations v. Guidance: Pick Your Poison

There are not too many areas of environmental law where practice intersects frequently with academic theory. One such area is whether agencies should use notice and comment rule-making any time they want to set forth policy or whether they should instead be permitted to use flexible guidance documents. The real issue from the practitioner’s point of view is the extent to which use of guidance permits street level bureaucracy a degree of unfettered discretion that is truly scary. Like Judge Roy Bean, these bureaucrats are the law West of the Pecos – or at… More

More Forecasting for Climate Change Legislation

It seems that news on the behind-the-scenes dance in the House in an effort to bring major energy and climate change legislation to a floor vote by Memorial Day emerges every few hours, changing pundits’ predictions and analysis.  Even so, this morning’s article by E&E contained enough interesting tidbits to warrant highlighting it here.  

In short, Energy & Commerce Chairman Henry Waxman has set his goal to produce an amended draft of ACES this week, and intends to stick to his Memorial Day deadline, although it remains unclear whether the markup will begin in the full committee or… More

An EPA Cap and Trade Program Without Legislation?

For those of you who aren’t convinced that Senator Specter’s defection to the Democrats will be the savior of cap and trade legislation, and who are concerned by Senator Durbin’s recent pronouncement that, at this point, there are not 60 votes in the Senate, the question as to how EPA might regulate greenhouse gases under existing authority has taken on greater importance.

The traditional assumption, and the basis for the doom and gloom scenarios projected by the U.S. Chamber of Commerce, has been that EPA would regulate greenhouse gases under the NSR program. While there have been arguments… More

More Bush Administration Air Rules on the Way Out?

We have previously posted about EPA’s efforts to roll back regulatory changes made by the Bush Administration, particularly with respect to the NSR program. There is no question that the roll-back continues. This week, EPA announced it would review three separate NSR rules promulgated by the Bush administration. These include:

The “reasonable possibility” rule, which identified when major sources must keep records even if a contemplated change is not expected to trigger NSR review

The fugitive emissions rule, which limited by source category when fugitive emissions must be taken into account in determining NSR applicability

More

More News on Three-Pollutant Legislation

As I noted a couple of weeks ago, Representative John McHugh (R-NY) has introduced legislation that would require significant reductions in emissions of SO2 and NOx, and mercury from power plants. Now, Senators Carper (D-Del.) and Alexander (R-Tenn.) have announced that they will be introducing their own three-pollutant legislation in the Senate. Since they have not yet introduced a bill, we’ll all just have to imagine the specifics for now, but a few interesting nuggets have jumped out of the press releases and news reports.

First, Representative McHugh apparently wants to tie his legislation to the climate bill. However, Senator… More

Today’s the Day: EPA Releases Endangerment Finding for Greenhouse Gases Under the Clean Air Act

This morning, EPA issued a proposed finding that greenhouse gasses contribute to air pollution and may endanger public health or welfare. The proposed finding comes almost exactly two years after the Supreme Court, in Massachusetts v. EPA, ordered the agency to examine whether emissions linked to climate change should be curbed under the Clean Air Act, and marks a major shift in the federal government’s approach to global warming.

The finding, which now moves to a 60-day public comment period, identifies the six greenhouse gases that pose a potential threat as a set, a… More

The House Climate Bill: More Details on Federal Cap and Trade

As we mentioned yesterday, the discussion draft of the Waxman-Markey “American Clean Energy and Security Act of 2009” which was released on Tuesday is notable both for what it includes and the significant portions it leaves to be decided at a later date.

In summary, the bill contains four titles:

a “clean energy” title, which promotes renewable energy through a portfolio standard of 6% in 2012 rising to 25% by 2025, additional funding for carbon capture and sequestration, a low-carbon transportation fuel standard, and authorization for federal agencies to enter into long-term contracts with renewable energy providers; an… More

More News From the Coal Front: Mountaintop Mining Takes One Hit — and May Face Another

This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining’s Big Branch project in Pike County, Ky., and the Highland Mining Company’s Reylas mine in Logan County, W.Va., before permits are issued for those projects.

Although the broad brush is important here, so are some of the details. First, both letters raise concerns… More

The Current Score on Regulatory Reform in the Obama Administration? Zealots 1, Reform 0

In connection with the nomination of Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB, I noted my hope that the Obama administration would be a Nixon in China moment for regulatory reform. Given the administration’s aggressive early steps to combat global warming and to roll back some of the more extreme moves by the Bush EPA, the new administration could, if it chooses, give regulatory reform back its good name.

So far, the signs are not encouraging. In February, EPA announced that it was deferring until May 18 the effective date of the NSR aggregation… More

Insurance Regulators Unanimously Approve Climate Risk Survey

An update to a development we noted a few weeks ago –  as reported by Climate Wire today, at the national meeting of the National Association of Insurance Commissioners (NAIC) yesterday, regulatory officials from all 50 states, the District of Columbia and five U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands) unanimously voted in favor of rules requiring insurers to disclose the impacts of climate change on their business decisions. 

The mandatory survey’s adoption comes shortly after Maplecroft, a British risk management firm, reported that, although third world… More

Greenhouse Gas Endangerment Finding Out Soon: Will Regulations Be Far Behind?

Greenwire reported yesterday that EPA plans to issue its endangerment finding on emissions of greenhouses gases, in response to Massachusetts v. EPA, by the end of April. Greenwire also released EPA’s internal presentation regarding its recommendation to the Administrator.

Although EPA’s anticipated decision is not a surprise, it is still noteworthy. Among the highlights:

The finding will conclude that greenhouse gas emissions endanger public health (the proposed endangerment finding that the Bush administration EPA had prepared, but then withdrew, was limited to public welfare issues. The finding will apparently note that there are environmental justice implications associated with climate… More

EPA Unveils Nationwide Greenhouse Gas Reporting Regulations

The Environmental Protection Agency (EPA) today proposed regulations which create the first nationwide system for reporting emissions of CO2 and other greenhouse gases emitted by major sources in the US.  The proposed regulations are promulgated pursuant to the FY2008 Consolidated Appropriations Act  which was signed into law in December 2007, and instructs the EPA to require mandatory reporting of greenhouse gas emissions in all sectors of the economy.  Approximately 13,000 facilities will be subject to the rule, accounting for 85% to 90% of greenhouse gases emitted in the U.S.   Despite this large number, EPA believes that most small… More

Regulation of Coal Ash: The Ball’s In EPA’s Court For Now

Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.

In response to the Administrator’s announcement, Nick Rahall, Chairman of the House Natural Resources Committee withdrew his own coal ash regulation bill, H.R. 493,… More

100% Auction For CO2 Allowances Takes A Hit

As the New York Times reported on Friday, New York Governor David Paterson may increase the number of carbon allowances that New York gives to power plants for free, creating a significant policy departure from New York’s earlier approach to RGGI.   New York, together with seven other RGGI states, had earlier committed to auction nearly 100% of its allowances.  As such, New York gave away only a small portion of its allowances this year (1.5 million out of 62 million) through a program designed to lessen the impact of RGGI on the price of electricity. Paterson’s proposed adjustment would increase that number four-fold, giving away 6… More

Another Loss For the Bush EPA; The D.C. Court of Appeals Remands the Fine Particulate Standard

The batting average of the Bush administration EPA in appeals of its regulatory proposals may now have dropped below the proverbial Mendoza line. This week, the Court of Appeals for the District of Columbia remanded a substantial part of EPA’s particulate rule. That the Bush administration could achieve results where the Mendoza line is even a close metaphor is a testament to just how low its stock has fallen in the courts.

The case itself is important for a number of reasons, but is too lengthy for detailed analysis here. Highlights include:

First, the basic holding: the court remanded… More

EPA’s Roll-Back of Bush-Era Rules Appears to Begin in Earnest

While a lot of attention has been paid to whether EPA would reverse the Bush EPA decision denying California’s petition to regulate greenhouse gas emissions from mobile sources,  it is now clear even outside the climate change arena that life at EPA is going to be substantially different under the current administration.  As if evidence were really needed for that proposition, EPA announced this week that it was putting on hold the NSR aggregation rule that EPA had promulgated on January 15, 2009.

The rule, which had been long sought by industry, would have provided that nominally separate… More

Continuing Developments on Environmental Reviews of Stimulus Projects

I have posted a few times recently about the tension between environmental regulation and economic development, particularly in the context of current efforts at devising a stimulus package in Congress. Yesterday, Congress rejected an amendment to the stimulus bill, offered by Senator John Barrasso (R-Wyo.), which would have required NEPA reviews to be completed within 270 days for projects funded through the stimulus. Projects not reviewed during this time period would have been constructively approved, i.e., the absence of NEPA review during the 270-day period would have resulted in a determination that the project had no significant… More

The News on Coal Just Keeps Coming

Coal has taken its lumps this week. Today, legislation was introduced in Congress to require EPA to promulgate MACT standards for mercury emissions from coal-fired power plants within one year of enactment of the legislation.

There has been some suggestion that the legislation was filed simply to prod EPA to drop its appeal of the decision by the D.C. Circuit Court of Appeals rejecting EPA’s Clean Air Mercury Rule (CAMR), which would have created a cap and trade program for mercury emissions. If so, it worked, if only by telepathy, because, in a separate announcement… More

Will Decoupling Advocates Find a Dance Partner in Congress?

Among energy efficiency advocates, “decoupling” is the word of the day. Last year, the Massachusetts Department of Public Utilities issued an order decoupling utility rates from sales volume, joining California on the front lines of this issue. The point of decoupling is to eliminate utilities’ rate-based incentive simply to sell more and more power, thus making it easier for utilities to get behind demand management measures.

Congress is now grappling with the decoupling issue as it considers whether to require that states implement decoupling as a quid pro quo for stimulus money related to energy efficiency and conservation. Last week, both the… More

Is It Possible to Be Progressive and Effective at the Same Time?

President Obama continues to surprise some of his progressive backers. This time, it was his selection of Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB. The Center for Progressive Reform called Sunstein’s views “conservative” and similar to those of the Bush administration.

How did the appointment of a known progressive annoy the progressives? Sunstein’s sin is the support of the use of cost-benefit analysis in regulatory decision-making. Sunstein also rejects the precautionary principle.

I truly hope that this is a Nixon in China moment for cost-benefit analysis. Given that Obama has already appointed an aggressive –… More

Which Comes First, the Chicken or the Egg? Innovation and Regulation in the Climate Change Debate

In the struggle to control greenhouse gases, one debate has been which should come first, innovation or regulation. The Bush administration, of course, came down firmly on the side of innovation. It invested money – though many argued, not enough – in developing energy efficient technologies or means of controlling greenhouse gas emissions, but it fought to end against regulation of CO2 as a pollutant.

From a theoretical point of view, the Bush position was certainly inconsistent with traditional economic theory – as well as with off-stated conservative positions on issues. Once one accepts that greenhouse gas emissions lead to climate change, i.e.,… More