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,… More
Monthly Archives: July 2012
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.
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.… More
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,… More
The First Circuit recently confirmed the traditional rule that it doesn’t take much to trigger an insurer’s duty to defend a policyholder against an environmental claim. In Travelers Casualty and Surety Company v. Providence Washington Insurance Company, the First Circuit overturned the trial court’s conclusion that there could be no coverage for contamination under liability policies issued after a property owner had ceased the activities giving rise to that contamination.… More
For those of you following the public trust climate litigation in New Mexico, Judge Sarah Singleton has now issued a written decision denying the state’s motion to dismiss the case. There is no discussion of the issues, but it did seem worth noting that Judge Singleton also denied the state’s request for immediate interlocutory appeal (though providing that the request could be renewed after summary judgment),… 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,… More
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,… More
Is Knowledge an Element of CERCLA Liaiblity: The Lower Fox River Court Said So, But Did The Court Really Mean It?
The course of the Lower Fox River Superfund litigation has been a continual set of surprises, and its denouement was true to that pattern. In his post-trial decision last week, Judge Griesbach wrote the sentence that most CERCLA defendants have been waiting 30 years to hear: “It … seems doubtful that a defendant can ever be found to be an arranger if he did not know the substance in question is hazardous.” For a statute in which liability has always been held to be strict and without fault,… More
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.… More
Last week, I noted that the Bureau of Ocean Energy Management announced that it had identified an area for commercial wind energy leasing offshore Massachusetts. This week, BOEM announced the availability of an Environmental Assessment to support commercial leases in an adjoining parcel offshore both Massachusetts and Rhode Island. (Couldn’t find a photo with good resolution. The figure is obviously in the EA,… More
Last month, Judge Robert Wilkins dismissed the federal public trust climate change law suit, Alec L. v. Jackson. Judge Wilkins ruled on two alternative grounds. First, he held that there was no federal public trust doctrine. Second, he held that, even if there ever had been, such public trust doctrine had been displaced by the federal Clean Air Act.