We’ll Always Have RGGI: Paris or no Paris, New England and Mid-Atlantic States Continue to Lead on Greenhouse Gas Emission Reductions

Yesterday, Massachusetts and the eight other New England and Mid-Atlantic states that participate in the Regional Greenhouse Gas Initiative announced a proposed plan for the continued implementation of RGGI (the region’s cap-and-trade program) between the years 2020 and 2030.   The plan calls for an additional reduction of GHGs by 30% by 2030, beyond the RGGI 2020 levels. Emissions would be capped at about 75 million tons in 2021, declining by about 2.25 million tons every year until 2030. The rate of reduction (approximately 3% per year) is more aggressive than that in place during the first period (approximately 2.5%). (More detail on the program elements can be found here.)

The plan also calls for an increase in the price cap for allowances calls and the implementation of an Emissions Containment Reserve (ECR), designed to address lower than expected allowance prices. Under the new mechanism, for states that chose to implement the ECR, if the RGGI auction price falls below a predetermined trigger price, then some portion of the allowances would not be sold. This market correction would reduce the supply of emissions allowances to reflect the reduced demand demonstrated by the low market price. The goal of the ECR is to reduce price volatility and ensure that the program continues to serve its goal of reducing total emissions. The think-tank Resources For the Future proposed the ECR mechanism for RGGI, described in detail in their recently published report.

Sources are also reporting that New Jersey may return to RGGI after dropping out under Governor Chris Christie (both candidates running for Governor Christie’s term-limited seat have pledged to rejoin) and that Virginia may sign on as well. While the world certainly needs Paris, the commitments of the RGGI states will have reduced the emissions cap 65 percent from 2009 levels, far ahead of goals set in both the Clean Power Plan and the Paris Climate Accord.

Does NEPA Require Assessment of Downstream GHG Emissions Resulting From Gas Pipelines?

Last week, a divided panel of the D.C. Circuit Court of Appeals ruled that FERC violated NEPA in failing to assess downstream greenhouse gas emissions resulting from construction of the Sabal Trail pipeline, part of the Southeast Market Pipelines Project.  If the decision stands, it is going to have a very significant impact on review and development of gas pipelines.

(Full disclosure – Foley Hoag represents NextEra, one of the developers of the project, in a variety of environmental matters, though we were not involved in this case.)

To the majority, the case was fairly straightforward.  NEPA requires assessment of indirect impacts of projects, which are those which are downstream of the project, but nonetheless are “reasonably foreseeable.”  Since the basic purpose of the pipeline is to supply gas to power plants, the Court had no trouble concluding that GHG emissions from those plants are reasonably foreseeable.

In response to FERC’s argument that assessment of those indirect impacts was not practical, the Court noted that NEPA “necessarily involves some ‘reasonable forecasting.’”  Since FERC knows how much gas will be transported and at least roughly how much CO2 will be emitted by the power plants, the Court concluded that sufficient quantification of the downstream impacts is possible.

The Court also noted that FERC had argued that the pipeline gas will at least partially allow gas-fired plants to replace more polluting coal-fired plants.  The Court’s response?  All well and good, but not an excuse for failing to quantify both the emissions increases and decreases resulting from the pipeline.

The dissent by Judge Brown had a different take.  First, she noted that the case seems indistinguishable from prior precedent, including recent decisions authorizing natural gas export terminals.  She also noted that the Supreme Court has ruled that “but for” causation is not a sufficient basis to require an agency to assess indirect impacts under NEPA.

Given the dissent, and the arguable conflict with prior cases, it would not surprise me were the full Circuit to hear the case en banc.  I certainly expect FERC to seek en banc review, and probably to appeal to the Supreme Court, if necessary.

If the case stands, one might note the beginning of something of a trend.  Just last week, I posted about Montana Environmental Information Center v. U.S. Office of Surface Mining, in which the Court ruled that OSM could not approve a coal mine expansion without assessing the impacts of the GHG emissions that would result from the mine expansion.

We certainly live in interesting times.

The Social Cost of Carbon: Not Too Speculative for NEPA

Earlier this week, the Judge Donald Malloy of the District Court for the District of Montana granted summary judgment to the Montana Environmental Information Center on several of its claims alleging that the Office of Surface Mining had violated NEPA in approving a modification of a mining plan to expand the Bull Mountains Mine No. 1.  The decision is important for two reasons.

First, Judge Malloy agreed with the plaintiffs that it was arbitrary and capricious for OSM to fail to consider the costs associated with expansion of the mine.  As Judge Malloy acknowledged, NEPA does not always require a cost benefit analysis.  However, here, OSM calculated the economic benefit of the mine without attempting to determine the costs.  (Do I hear an echo of the case challenging President Trump’s “2 for 1” Executive Order, that requires zeroing out the cost of regulations, with no consideration of their benefits?)

Interestingly, the Court also specifically mentioned the Social Cost of Carbon Protocol, developed under the Obama administration, as one tool to use to quantify the costs associated with the mine expansion.  We’ll see how that fares under this administration. 

The second point is a broader one about NEPA, and is a useful reminder, even if not original.  The defendants repeatedly argued, on the social cost of carbon issue, as well as others raised in the case, that they had no obligation to address the issues raised by the plaintiffs, because it would have been speculative to do so.  The Court disagreed, noting repeatedly that uncertainty and a lack of precision are not the same as “speculation.”  In fact, as the Court noted, the presence of uncertainty about impacts makes it even more important to conduct a full environmental impact assessment.

It is probably true that one person’s speculation is another’s reasonable foreseeability.  Either way, it’s a good reminder that this is an issue that both citizen groups and project proponents need to address and properly frame.

The Montreal Protocol Is Not a Climate Change Statute

Earlier this week, the D.C. Circuit Court of Appeals struck down part of an EPA rule promulgated pursuant to the Montreal Protocol.  The section that was struck down would have required manufacturers of HFC-134a, which is not ozone-depleting and which had previously been determined by EPA to be an acceptable replacement for ozone-depleting compounds, to find other replacements, because EPA determined in 2015 that HFC-134a did not “reduce overall risks to human health and the environment.”  Why?  Because HFC-134a is a potent greenhouse gas.

There’s been a lot of commentary about this decision from both sides of the aisle.  I think it’s all overblown and I think that the decision is correct under the “Give me a break” theory of statutory interpretation.

On the merits, the Court concluded that, because HFC-134a had previously been deemed less risky, and because HFC-134a had long ago “replaced” ozone-depleting substances, it’s continued use could not reasonably be considered to be “replacing” anything.  The Court thus struck down the rule on the basis of step one of Chevron.  I’m with the Court on this one.  The dissent just seems to tie itself in knots in order to find an ambiguity in the statute so it can get to step 2 of Chevron.

I’ll go further on the Chevron question.  I think it would be a mistake for environmentalists who support this rule because it would be environmentally beneficial to go too far.  If the dissent were to prevail here, it would only add legitimate fuel to the fire that those who oppose Chevron are trying to set.  If there’s an ambiguity here, it’s difficult to conceive of many statutes that aren’t ambiguous, leaving all interpretation to agencies.  That’s not supposed to be what Chevron is about, though it is what Chevron’s critics say it is about. Supporters of Chevron should not be giving ammunition to its critics.

On the implications of the decision, I’d advise everyone to calm down.  Conservatives are excited and liberals concerned because Judge Kavanaugh stated that “climate change is not a blank check for the President.”  For those who believe in the rule of law, that should hardly be a controversial statement.

On the other hand, perhaps liberals should be excited and conservatives concerned, because Judge Kavanaugh had no problem affirming EPA’s underlying judgment that climate change provided a sufficient to determine that HFC-134a would not, going forward, be seen as a safe substitute for ozone-depleting substances.  He also identified several other statutory regimes that might provide EPA with authority to regulate existing uses of HFC-134a.

The case really is not that broad.  All the majority opinion does is preclude EPA from determining retroactively that HFC-134a was not a safe replacement.  As a result, EPA may not require those who used HFC-134a to replace ozone-depleting compounds, because EPA told them that they could, to find another substitute.

Everyone on both sides may now pause and take a deep breath.

Coming Soon To a Massachusetts Facility Near You: More Citizen Enforcement?

Earlier this week, the Massachusetts Executive Office of Environmental Affairs went live with two new web sites intended to increase the public availability of information concerning regulated entities in Massachusetts.  The first, ePLACE, will provide information about on-line permit applications.  However, since MassDEP began accepting on-line applications on May 5, 2017, ePLACE is going to be of much more interest in the future than it is today.  As of now, there is not much there.

The more interesting site is the Data Portal, which lists permits, inspections, and enforcement actions with respect to any facility in Massachusetts.  The site does not provide many specifics, but it does list every existing permit and enforcement action against each facility in Massachusetts.

Even without a lot of detail, the Data Portal is potentially a treasure trove for activists and interest groups.  It’s somewhat similar to the Obama EPA Next Generation Compliance program, in terms of increasing transparency and encouraging citizen enforcement.  EEA certainly is never going to say explicitly that environmental budgets are lean and it thus wants to facilitate citizen enforcement to backstop reduced governmental enforcement resources, but we can all draw our own conclusions.

Citizens, go forth and sue!

Regulated community, check the Data Portal regularly.  An ounce of prevention is worth a pound of cure!

Real Superfund Reform Would Not Place It At the Center of EPA’s Core Mission

Earlier this week, Scott Pruitt released the results of the Superfund Task Force he established in May.  Though skeptical, I was pleased at the creation of the task force and goals he established for it.  With the release of the report, my skepticism has returned.

First, the report and Pruitt’s memo about it repeat the claptrap about restoring “the Superfund program to its rightful place at the center of the agency’s core mission.”  Since he keeps repeating that statement, I have to keep repeating that, every time EPA – or the private sector – looks at the top environmental risks, Superfund doesn’t even make the list.  This time, Pruitt goes further, stating that:

I ask myself every day, what could be more important, more ‘core’ than giving Americans the ability to use the land they are blessed with.

And I answer, “What about the air we breathe and the water we drink?”  It’s harder to avoid breathing the air and drinking the water than using any particular piece of land.  That’s why we have institutional controls to restrict land use, but not institutional controls to prevent breathing of contaminated air.  The skeptical part of my brain is now telling me that this Task Force and putting Superfund at the core of EPA’s mission are just a way for Pruitt to pursue his deregulatory agenda for air and water while still claiming that he’s a real environmentalist.

On the merits, the report has some good ideas, but it’s pretty much a mishmash, many of the pieces of which are internally inconsistent.  I’d be shocked at this point if anything meaningful results.

Remember, I represent the regulated community.  I’d love to see Superfund reformed.  I’d particularly like to see the recommendations for reducing oversight costs implemented.  The government should be embarrassed that it regularly incurs more in oversight costs than PRPs incur in actually performing cleanups.

I just don’t see much prospect for success for a reform initiative when the real purpose of the initiative appears to be to use Superfund as a fig leaf to cover the widespread roll-back of important regulations in other areas.

State Programs to Encourage Zero-Emitting Generation are Really, Really, Constitutional

Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here.  So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.

(Renewed caveat:  This firm represents, in unrelated matters, a number of the generators who challenged the statute.  We also represent numerous renewable energy firms generally supportive of state authority to provide incentives to renewable energy.  This post is definitely agnostic about the New York statute.  It is the broader question of state authority that interests me here.)

The reasoning of the New York decision was very similar to that in Illinois (as well as the Allco 2nd Circuit decision upholding Connecticut statutes supporting renewable energy generation).  I note only two points from the New York decision that were not discussed, at least with the same directness, in the prior cases.

First, Judge Caproni found that the plaintiffs did not even have standing to argue that the Federal Power Act preempted the New York statute, because she concluded that, under Armstrong v. Exception Child Center, private parties cannot bring Supremacy clause challenges against States.

Thus, the FPA precludes private enforcement except as provided for by PURPA, and private parties such as Plaintiffs “cannot, by invoking [the Court’s] equitable powers, circumvent Congress’s exclusion of private enforcement.”

Second, in finding on the merits that the FPA does not preempt the ZEC program, the plaintiffs argued that:

ZEC program is “tethered” to the wholesale auction. Plaintiffs argue that there is an impermissible tether because: (1) a nuclear generator is eligible for a ZEC only if the NYISO auction rates are insufficient for the generator to stay in business….

Importantly, the court noted that plaintiffs’ argument essentially proved too much.  Many state programs that no one would consider preempted would be at risk if that were the test:

A whole host of measures that States might employ to encourage clean energy development—such as tax incentives or direct subsidies—involve propping up the operation of a generator that might otherwise be unprofitable. Hughes did not prohibit such state assistance, and Plaintiffs have not argued that such state subsidies are per se preempted.


Fatal to Plaintiffs’ argument is their failure to offer any cogent explanation why ZECs are preempted but other state incentives to generate clean energy—such as tax exemptions, land grants, or direct financial subsidies—are not. Such incentives also allow clean energy generators to be more competitive than they would otherwise be, and they therefore also affect price signals in the wholesale auction.

And that’s the key to it all.  States can encourage all kinds of generation.  States can provide financial incentives for all kinds of generation.  West Virginia could probably implement a program to encourage coal generation, articulating policy reasons specific to the Mountain State.  As long as the programs do not directly interfere with FERC authority over wholesale markets, the programs should survive constitutional challenge.

State Programs to Encourage Zero-Emitting Generation Are Constitutional

Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy.  Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”

(Caveat:  This firm represents, in unrelated matters, a number of the generators who challenged the statute.  We also represent numerous renewable energy firms generally supportive of state authority to provide incentives to renewable energy.  This post is definitely agnostic about the Illinois statute.  It is the broader question of state authority that interests me here.)

Like the plaintiffs in the Connecticut case, the plaintiffs here argued both that the statute was preempted and that it violates the Dormant Commerce Clause.  The Court rejected both arguments.  As to preemption, the importance of the decision is its preservation of state authority, even if it “substantially affects the quantity and terms of wholesale sales,” so long the program does not “directly” affect wholesale rates:

influencing the market by subsidizing a participant, without subsidizing the actual wholesale transaction, is indirect and not preempted.

As to the Dormant Commerce Clause, plaintiffs alleged that the environmental benefits of the statute were a sham, and that its real intent was simply to benefit Exelon.  The Court concluded that the statute imposes neutral standards and the plaintiffs had not alleged that the agencies would implement the statute in a biased way.  The Court also rejected the plaintiffs’ argument that the statute has a discriminatory intent.

Courts must “assume that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces [the Court] to conclude that they ‘could not have been a goal of the legislation.’”

Overall, the case, together with the 2nd Circuit decision in Klee, provides strong support for state authority to encourage renewable or low-emitting sources of energy.  Individuals can argue about the merits of the Illinois statute – and the Connecticut statutes – but certainty is generally a good principle in the law, and we are moving towards greater certainty about state authority in this area.

Reports of the Death of the SEP Have Not Been Greatly Exaggerated

Last month, Attorney General Sessions barred DOJ from entering into settlements that provide for payments to non-governmental persons not a party to the dispute.  At the time, I peered into my crystal ball and proclaimed that the practice of incorporating supplemental environmental projects into environmental settlements was “hanging by a thread.” For once, my speculation was accurate.

Yesterday, DOJ notified the District Court for the District of Columbia that the United States and Harley-Davidson had jointly agreed to modify a consent decree that had already been lodged with the Court.  The original decree provided for a $3 million SEP, to replace old woodstoves.  Notwithstanding that SEPs have traditionally been used to mitigate penalty amounts, the modified decree did not increase the penalty to Harley-Davidson; it merely eliminated the SEP.  Well done, Harley-Davidson lawyers!

In modifying the decree, DOJ explicitly cited to the Sessions memorandum, noting simply that:

Questions exist as to whether this mitigation project is consistent with the new policy.

Ya’ think?

The only question remaining at this point is whether other defendants will be able, like Harley-Davidson, simply to pay smaller penalties or whether, going forward, penalties will increase where SEPs are unavailable as mitigation.  I know where this administration’s proclivities lie, but I’m going to stop speculating while I’m ahead of the game.

EPA Fails to Justify Its Use of Surrogates for Certain Hazardous Air Pollutants

Yesterday, the D.C. Circuit Court of Appeals remanded EPA’s MACT standards for PCBs, polycyclic organic matter, and hexachlorobenzene to EPA.  Rather than setting specific MACT standards for these compounds, EPA regulated them through “surrogates,” commonly particulate matter.  The Sierra Club and others argued that EPA did not adequately justify the use of surrogates.

The three-part test for the adequacy of a surrogate is clear and worth repeating:

(1) the relevant hazardous air pollutant is invariably present in the proposed surrogate;

(2) control technologies for the proposed surrogate indiscriminately capture the relevant HAP along with other pollutants; and

(3) the control of the surrogate is the only means by which facilities achieve reductions in emissions of the hazardous air pollutant.

Here, while EPA provided some explanation for its basis in utilizing surrogates, it failed to respond to any of the comments it received on its proposed determination.  Instead, EPA basically interpreted the attack on the surrogates as an attack on the original underlying standards, and concluded that it did not need to respond to such comments.  Not so fast, said the Court.

EPA cannot hide behind the established nature of the standards it uses when it applies new surrogacy relationships.

The lesson from this one may be basic, but it’s still important.  EPA really does have to respond to comments as a regulation may move from proposal to final rule.  Failing to do so provides an easy argument by a plaintiff that the final rule was arbitrary and capricious.

One final note.  Don’t try to blame Donald Trump or Scott Pruitt for this one.  The decision to rely on surrogates and the proposed and final determinations were all performed under the prior administration.

EPA Delays Compliance with Massachusetts MS4 Permit

On Thursday, EPA extended the compliance deadline for its General Permit for Small Municipal Separate Storm Sewer Systems for one year, until July 1, 2018.  The move almost certainly prompted a collective sigh of relief among both small municipalities directly subject to the rule and developers who would be indirectly impacted, as MS4s struggle to comply.

EPA gave several reasons for the delay:

  • The MS4 permit had been challenged, both by those subject to it and by the Conservation Law Foundation.
  • EPA is exploring whether it might be useful to take the litigation to some kind of alternative dispute resolution procedure.
  • The delay will align the Massachusetts permit with a functionally identical MS4 permit issued for New Hampshire, which already has a July 1, 2018 compliance date.

There’s already been a lot of litigation over EPA’s delays in enforcing various Obama-era rules.  However, I don’t really see this delay as of a piece with the others.  While CLF may object to the delay, this one seems perfectly reasonable to me.  Providing time for negotiations and aligning the Massachusetts compliance date with that in New Hampshire, where the New Hampshire MS4 permit is now also subject to litigation, just seems like good common sense.

NGOs 1, Trump EPA 0: The First Skirmish in the Great Environmental Rollback War Goes to the Greens

Earlier this week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017.  The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.

Notwithstanding Judge Brown’s dissent, EPA’s position on the merits seemed barely credible.  I understand the argument that the stay was not final agency action and thus not judiciable.  It just doesn’t seem compelling to me.  If EPA had amended to rule to extend the compliance deadlines, that clearly would have been subject to judicial review.  Why should the answer be different because EPA styles its action as a stay, rather than a revision to the regulations?  The impact is exactly the same.

As to EPA’s position that the four issues which it was reconsidering could not have been addressed during the original rulemaking by the industry groups now seeking reconsideration, EPA’s position was almost embarrassing.  As the Court repeatedly demonstrated, not only could the industry groups have addressed the issues during the original rulemaking, but they actually did so.  Moreover, EPA did consider those comments and, at least in parts, adopted them in the final rule.  My favorite example is the court’s discussion regarding the criteria for exemption for well-site pneumatic pumps.  As the Court noted:

[The American Petroleum Institute] … proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal.

The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption.

The real question at this point is whether this decision is any kind of harbinger.  Practitioners know that the record of the Bush EPA in rolling back Clinton rules was shockingly poor, given Chevron deference.  Are we going to see the same again?  The Court threw EPA what could prove to be a rather large fig leaf by noting that the decision does not prevent EPA from reconsidering the methane rule.  The Court also quoted FCC v. Fox Television Stations – the same case on which EPA is relying in its rollback of the WOTUS rule:

[EPA] is free to [reconsider the rule] as long as “the new policy is permissible under the statute.., there are good reasons for it, and … the agency believes it to be better.”

This is where the battles are going to be fought over the next several years.

State Programs to Encourage Renewable Energy Are Constitutional (In Case You Were Worried)

Last week, the 2nd Circuit Court of Appeals affirmed a District Court decision rejecting a challenge to Connecticut statutes intended to encourage renewable energy development in Connecticut.  It’s a critical win, not just for Connecticut, but for many renewable energy programs in other states across the country as well.

(Important caveat.  These cases are bloody complicated and no blog could possibly summarize them without omitting important details.  Hold your criticism!)

Allco Finance develops small renewable energy facilities that are considered “qualifying facilities” under Public Utility Regulatory Policies Act.  PURPA guarantees QFs the right to sell energy to utilities at the utilities’ avoided costs.

In 2013 and 2015, Connecticut enacted legislation to encourage use of renewable energy in Connecticut.  The legislation authorized the Department of Energy and Environmental Protection to solicit renewable energy proposal and to “direct” utilities to enter into bilateral contracts with the winners.  Allco alleged that DEEP was “compelling” utilities to enter into contracts and thus encroached on FERC’s exclusive regulatory authority over wholesale prices.

Even though the case was at the motion to dismiss stage, the Court was able to reject Allco’s arguments, because, notwithstanding the “direct” language, documents referenced in Allco’s complaint made clear that:

[t]his RFP process, including any selection of preferred projects, does not obligate any [utility] to accept any bid,” and (b) that the winning bidders “will enter into separate contracts with one or more [utilities] at the discretion of the [utilities].

Thus, the Court concluded that the statute did not encroach on FERC authority and was not preempted.  Importantly, the Court distinguished the Supreme Court’s recent decision in Hughes v. Talen Energy Marketing.  Rather than interfering with a FERC-approved auction, as was the case with the Maryland program in Hughes, the Connecticut RFP actually required FERC approval of any contracts between utilities and renewable power producers.

Allco also challenged Connecticut’s Renewable Portfolio Standard, alleging that it violated the dormant Commerce Clause, because it disadvantaged owners of out-of-state renewable energy certificates.  The Court found that, because Connecticut is only served by electricity generated within ISO New England and certain adjacent areas:

we here recognize the importance of Connecticut’s interest in protecting the market for RECs produced within the ISO-NE or in adjacent areas. Connecticut’s RPS program serves its legitimate interest in promoting increased production of renewable power generation in the region, thereby protecting its citizens’ health, safety, and reliable access to power.

Significantly, we note that Connecticut’s RPS program makes geographic distinctions between RECs only insofar as it piggybacks on top of geographic lines drawn by ISO-NE and the NEPOOL-GIS, both of which are supervised by FERC—not the state of Connecticut.

Thus, the Connecticut program did not violate the Commerce Clause.

Klee’s importance almost cannot be overstated.  It is not just that it gives necessary backing to Connecticut’s renewable energy program and similar programs in other states.  It also provides a fairly clear roadmap for what states must do in order to ensure that their programs pass constitutional muster.

Big sigh of relief in green states.

EPA Does Not Have a Non-Discretionary Duty to Assess the Impact of Clean Air Regulations on Employment

Yesterday, the Court of Appeals for the 4th Circuit reversed a District Court decision and rejected the lawsuit by Murray Energy which argued that EPA had a non-discretionary duty under § 321(a) of the Clean Air Act to:

conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.

The Court concluded that this language “does not impose on the EPA a specific and discrete duty amenable to” judicial review.  As the Court noted:

Section 321(a) calls for evaluations without, for the most part, specifying guidelines and procedures relevant to those evaluations. Furthermore, Section 321(a) establishes no start-dates, deadlines, or any other time-related instructions to guide the EPA’s continuous evaluation efforts.

I’m not surprised by the outcome.  Notwithstanding my usual reluctance to speculate, I did go a short way out on a limb and state that the District Court “probably got this one wrong.”  The more interesting question is why the current administration pursued the appeal.  It says something about the havoc that this would have caused that even Scott Pruitt did not want to deal with judicial review over a continuing obligation to evaluate potential job losses resulting from EPA regulations.

Meet the New WOTUS. Same as the Old WOTUS.

Earlier this week, EPA and the ACOE began implementing the Trump administration’s efforts to deconstruct the Obama rule defining “Waters of the United States” under the Clean Water Act.  EPA and the ACOE submitted for Federal Register publication a proposed rule that would temporarily restore the WOTUS definition that existed prior to the promulgation of the Obama rule in 2015, while they go about drafting a narrower definition.

The overall effort to undue the WOTUS rule is obviously important, but I have to confess, simple country environmental lawyer that I am, that I find this proposal mostly just puzzling.  I would of course hate to think that anyone acting at the behest of the President would do anything disingenuous, but it’s hard to think of a different word here.  The proposal states that its intent is to reduce uncertainty in the regulatory community.  However, one point on which all sides agreed prior to promulgation of the 2015 rule is that the status quo was intolerable, precisely because no one knew what WOTUS meant.

It is difficult to see how a return to that regime would increase certainty in the regulatory community.  BTW, it’s worth noting here that the proposed rule indicates that a return to the pre-2015 status quo also includes a return to reliance on the 2008 Guidance interpreting Rapanos, which conservatives hated because it relied on Kennedy’s “significant nexus” opinion.  It’s difficult to believe that the administration really means that.

The proposed rule also states that withdrawal of the Obama rule is important, because judicial decisions on the Obama rule might otherwise leave different definitions in place in different states.  However, since the entire thrust of the proposed rule is to emphasize the importance of section 101(b) of the CWA, which is intended to “recognize, preserve, and protect the primary responsibility and rights of States” in the implementation of the CWA, it’s pretty clear that this administration is not troubled by different levels of protection in different states.  Does anyone following this process expect any outcome other than a narrowed definition which sticks pretty closely to adjacent waters, with repeated declarations that states are free to regulate more stringently?

Finally, commenters have noted that the proposal does not address the science behind the 2015 rule, relying on the President’s authority to make different policy choices, as long as they are “reasoned.”  I still think that it’s going to be difficult to defend a very narrow definition purely on policy grounds.  We’ll find out sometime in the next few years.