The Uncertain Future of the Clean Power Plan under the Trump Administration

Since the Obama Administration announced its implementation in August of 2015, the Clean Power Plan (“CPP”) has managed to survive despite the many challenges brought against it. The Environmental Protection Agency (the “EPA”) rule was the centerpiece of the Obama Administration’s climate change plan and seeks to reduce carbon pollution from power plants by 32% from baseline 2005 levels by 2030 by setting reduction goals for each state. However, the CPP has encountered many legal roadblocks, and, with the election of Donald Trump and a Republican Congress, its future appears to be in doubt.

On February 9, 2016, the United States Supreme Court ordered the Obama Administration to stay any efforts to implement the CPP until the completion of all legal challenges to the same in a 5-4 ruling. While the Court stay of the CPP is not final, it placed the Obama Administration’s environmental agenda in peril. However, the death of Justice Scalia in February appeared to put the CPP in a much more stable position. The sitting panel of the United States Court of Appeals for the District of Columbia Circuit, which will decide the challenge, is composed of a majority of judges appointed by Democratic Presidents that would likely uphold the regulations. A majority of the Supreme Court would then be needed to overturn the Supreme Court’s decision. Prior to the election, that seemed unlikely, as the Court was deadlocked at 4-4. Oral arguments in case against the CPP were heard in the D.C. District Court on September 27, 2016, but no final ruling has been issued.

With the recent election of Mr. Trump to the presidency, however, the CPP will likely be rendered completely ineffective. Mr. Trump has stated that he believes that climate change is a hoax, and, in a May 2016 speech to the North Dakota Petroleum Council, he said that he would “rescind” the CPP in his first 100 days in office. Further, he has appointed Myron Ebell, the Director of Global Warming and International Policy at the Competitive Enterprise Institute, as the head of his EPA transition efforts. Mr. Ebell is a well-known skeptic of climate change and is a vocal opponent of the CPP.

In order to limit or block the CPP, the Trump Administration has several options:

• As a far-reaching option, the Trump Administration, working with the Republican-controlled Congress, could author and pass a bill amending the Clean Air Act that would reduce or eliminate the power of the EPA to regulate carbon emissions. This would effectively kill the CPP. Such a bill would be subject to a Democratic filibuster in the Senate; however, Senate Republicans have the constitutional option of removing or substantially limiting the filibuster. In the alternative, the Republican Congress may attempt to attach a rule reducing the regulation of carbon emissions to a more popular bill as a compromise with the Democrats to avoid a battle over the filibuster.

• If the D.C. District Court does not issue its decision before Mr. Trump’s inauguration, the Trump Administration’s newly-appointed Attorney General could move for a “voluntary remand” as discussed in SKF USA, Inc. v. United States, 254 F.3d 1022 (Fed Cir. 2001), whereby the agency, in this case the EPA, can ask that the court remand the action to the agency to conduct additional proceedings in the underlying case. The Trump Administration then could modify the CPP at the agency level to weaken or remove its more stringent regulatory requirements.

• If the D.C. District Court does uphold the CPP prior to January 20, 2017, the Trump Administration could require the EPA to re-write the CPP. The EPA would then need to follow the full necessary rulemaking procedures, including notice, drafts of the rule, and public comment on the same, which would typically take at least 12 to 15 months.

• The Trump Administration, through the EPA, could also decline to strictly enforce the CPP regulations and instead give states leeway to create very weak implementation plans.

If the Trump Administration is successful in weakening or overturning the CPP, various states, such as Colorado and California, will likely move ahead with their state-specific plans, while other states, such as Texas and West Virginia, may abandon their plans entirely. Moreover, economic factors such as the low price of natural gas and the continuing growth and efficiency of solar and wind energy will likely continue the decline in the use of coal-fed power plants. Regardless, the elimination of the CPP will slow the de-carbonization of the energy sector, and the Trump Administration’s actions on the CPP will likely be indicative of the coming political battles over energy production during the next four years.

  1163 Hits
1163 Hits

Gold King Mine Spill Exposes the Legal Hurdles to Cleaning up Mines

This blog post was written by Katherine "Kate" Sanford who worked with WSMT as a summer intern from June 1 through August 10, 2016.

On August 5, 2015, Environmental Protection Agency (“EPA”) contractors inadvertently broke through a retaining wall at the closed Gold King Mine, causing over 3 million gallons of acidic, metal-laden water to flow into the Upper Animas Watershed in Southwest Colorado. The garish orange plume, which was estimated to contain around 900,000 pounds of heavy metals, made its way from Colorado, through New Mexico, and into Utah’s Lake Powell. Along the way, arsenic, lead, cadmium, copper, mercury, and zinc settled along the riverbeds of the San Juan and Animas Rivers. See Gold King Mine Accident Highlights Risks Posed by Abandoned Mines.

In the weeks and months that followed, downstream communities suffered from the spill: Durango rafting companies lost hundreds of thousands of dollars, and the Navajo Nation shut off two of its major irrigation systems, severing a lifeline for many farmers in the area. Meanwhile, the EPA took full responsibility for the disaster and worked quickly to build a $1.5 million dollar water treatment plant at the mine. Today, the water downstream is clear, but the cleanup is not over. The EPA has already spent $29 million in disaster response and may spend as much as $50 million before the task is complete.

Throughout the past year, the Gold King Mine spill has not only exposed the existence of abandoned mines that are leaking toxic water, but also the legal impediments to cleaning them up. There are an estimated 23,000 inactive mines in Colorado and 500,000 around the West. Federal investigators from the Department of Interior’s Bureau of Reclamation have found that tens of thousands of these abandoned mines are contributing to continuing pollution. But most of the companies that built the mines over the past 150 years have been out of business for so long that no one is around to take responsibility. To make matters worse, environmental statutes are hindering ”Good Samaritans” from mine clean-ups by burdening them with crippling legal liability. Consequently, the EPA is left with the expensive and arduous task of cleaning up almost all of them.

The Clean Water Act (“CWA”) is one example of a well-intentioned environmental law that poses a major hurdle to cleaning up abandoned mines. It affixes liability and responsibility to anyone who attempts to address a leaking mine, even if the owner had no role in creating the pollution and is working to clean it up. Similarly, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) imposes retroactive strict liability, meaning that current owners are liable even if the pollution was not their fault and even if the site was polluted before CERCLA was enacted. As a result, people are reluctant to try to clean up abandoned mining sites.

In the last year, several bills were introduced in Congress in response to the Gold King Mine spill to address these legal deterrents. Several of the bills are new versions of Good Samaritan legislation, which seek to reduce the liability of those who work to clean up abandoned mines. For example, senators from four different states introduced the Hardrock Mining Reform and Reclamation Act, which would reduce liability by amending the CWA so that Good Samaritans can obtain special permits. The Act would require mining companies to pay a 2% to 5% royalty for extracting mineral resources from public lands – a probable deal killer for an industry that pays no royalty. The Act would also create a reclamation fund to help pay for cleaning up abandoned mines. Similarly, the proposed Abandoned Mine Reclamation Safety Act would direct the Secretary of the Interior to create new regulations to facilitate the safe and environmentally responsible cleanup of abandoned mines.

  1457 Hits
1457 Hits

EPA Haze Rule – U.S. Court of Appeals for the 5th Circuit Stays EPA From Implementing Final Haze Rule in Texas and Oklahoma.

The federal Clean Air Act requires the states and the federal government to establish and meet targets for visibility in protected national parks and wildlife areas through regulations that control air pollutants in ambient air. 42 U.S.C. §§ 7410, 7491, 7492(e)(2). The federal government has the primary responsibility for identifying air pollutants and setting standards. The states, however, bear the primary responsibility for implementing those EPA standards by promulgating state implementation plans ("SIPs"). In accordance with the Act, the EPA issued a Regional Haze Rule in 1999 requiring states (1) to develop implementation plans by the end of 2007 for the 2009–2018 period and (2) to submit revised plans every ten years thereafter. 40 C.F.R. § 51.308(b), (f).

In January 2009, EPA found that Texas and Oklahoma (and several other states) had missed the 2007 deadline. Texas and Oklahoma subsequently submitted plans which were partially disapproved by EPA. In 2014, EPA proposed substitute federal plans and later issued its Final Rule in 2016. 81 Fed. Reg. 296 (Jan. 5, 2016). Claiming that the EPA was improperly targeting coal-fired power plants, the State of Texas, power plants, numerous energy companies, state regulators, and others filed a petition to review the Final Rule in the U.S. Court of Appeals for the 5th Circuit ("5th Circuit"). State of Texas v. U.S. Environmental Protection Agency, Case No. 16-60118. On July 15, 2016, the 5th Circuit issued an order denying EPA's motion to dismiss or transfer of venue of the petition, finding that:

• The 5th Circuit, which encompasses Texas, has jurisdiction to review the Final Rule pursuant to the Clean Air Act, 42 U.S.C. § 7607(b)(1);
• Venue in the 5th Circuit is proper because the petitioners' challenge addresses locally or regionally applicable action under the Act; and,
• Because staying implementation of the Final Rule was warranted, the 5th Circuit granted petitioners' motion for a stay pending resolution of the petitions for review on the   merits.

Because the EPA's actions involve 37 other states in other federal circuits, this matter may see inconsistent analyses by the several federal circuit courts and require final resolution by the U.S. Supreme Court.

  1333 Hits
1333 Hits

Upon the Death of Justice Scalia, the Clean Power Plan Gains New Life

The Obama Administration, through the Environmental Protection Agency (“EPA”), announced the implementation of the Clean Power Plan (“CPP”) in August of 2015. The CPP has the stated purpose of “establishing guidelines for states to follow in developing plans to reduce greenhouse gas emissions from fossil fuel-fired electric generating units,” or, in layman’s terms, to cut carbon emissions from power plants. At that time, fifteen coal-reliant states filed for an emergency stay of the CPP with the U.S. Court of Appeals for the District of Columbia Circuit. The court dismissed the petition on September 9, 2015, stating that it was untimely because the final regulation had not yet been properly published. On January 21, 2016, the D. C. Circuit Court denied the requested stay on its merits. On January 26, 2016, officials of twenty-nine states appealed to the U.S. Supreme Court, requesting a stay pending the resolution of litigation regarding the regulation. The appellants argued that the CPP provided the EPA with too much power, which would result in the EPA pushing for the use of wind and solar at the expense of older energy-generating plants that burn coal or oil.

In a 5-4 ruling on February 9, 2016, the Supreme Court ordered the Obama Administration to stay any efforts to implement the CPP until the completion of all legal challenges to the same. This stay will remain in place while courts consider more than 30 lawsuits pertinent to the CPP. While the Supreme Court stay of the CPP is not final, it placed the Obama administration’s environmental agenda in peril. Following the ruling, the White House expressed its disappointment as follows:

We disagree with the Supreme Court's decision to stay the Clean Power Plan while litigation proceeds. The Clean Power Plan is based on a strong legal and technical foundation, gives states the time and flexibility they need to develop tailored, cost-effective plans to reduce their emissions, and will deliver better air quality, improved public health, clean energy investment and jobs across the country, and major progress in our efforts to confront the risks posed by climate change.

Even if the rule is eventually upheld, the stay will adversely affect compliance timelines set forth for states and utilities. The CPP requires states to submit implementation plans as early as this year (with possible extensions to 2018) in order to reduce greenhouse gas emissions from existing power plants by 2022. This would result in carbon emissions reductions of 32 percent from 2005 levels by 2030.

The EPA enacted the CPP under a section of the Clean Air Act that has been rarely used since it was passed in 1970. Justice Antonin Scalia, writing for the majority, noted that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.” The stay indicated that the conservative majority of the Court foresaw a reasonably high likelihood that the challengers to the CPP would probably win their case, and that the denial of the stay would result in irreparable voluntarily harm.

However, the recent death of Justice Scalia puts the CPP in a much more stable position than it would have been otherwise. The sitting panel of the D.C. District Court, which will decide the challenge, is composed of a majority of judges appointed by Democratic Presidents that would likely uphold the regulations. A majority of the Supreme Court would then be needed to overturn the D.C. Circuit Court’s decision. This seems unlikely, as the Court as it stands now is deadlocked at 4-4. If the Obama Administration is able to fill the vacancy on the Court or if a Democratic successor to President Obama is elected, the Court would likely uphold the CPP by a 5-4 vote. On March 3, 2016, Chief Justice John Roberts refused a similar request by 20 states to stay an EPA regulation limiting mercury and other toxins from power plants as it undergoes a lower court challenge, a move that some pundits claim evidences a shift of power on the Court.

In any regard, the EPA plans on pushing forward with the implementation of the CPP. At a recent conference in Houston, EPA Administrator Gina McCarthy expressed confidence that the CPP would survive these on-going legal challenges, and she pledged that the EPA would, in the meantime, continue to help states that wanted to continue to implement the CPP by choice. In her words, “[t]he stay doesn’t preclude the EPA from continuing to make progress on climate change. Are we going to respect the decision of the Supreme Court? You bet we are. But that doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”

  1796 Hits
1796 Hits

Early State Challenges to the Clean Power Plan Fall Short of Stay

On August 3, 2015, the Obama Administration through the Environmental Protection Agency (“EPA”) announced the implementation of the Clean Power Plan (“CPP”) which has the stated purpose of “establishing guidelines for states to follow in developing plans to reduce greenhouse gas emissions from fossil fuel-fired electric generating units,” or, in layman’s terms, to cut carbon emissions from power plants. The Final Rule addresses both new and existing power plants. Through the CPP, the EPA has set forth (1) carbon dioxide performance rates for fossil fuel-fired electric utility steam generating units and stationary combustion turbines; (2) state-specific carbon dioxide goals based on past carbon dioxide performance rates; and (3) guidelines for the development and implementation of state or multi-state plans that establish standards and other measures to implement these performance rates. http://www2.epa.gov/cleanpowerplan

The ultimate goal of the CPP is to reduce carbon pollution from power plants by 32% from baseline 2005 levels by 2030, and sets reduction goals for each state. In determining these reduction goals, the EPA considered each state’s current carbon dioxide emissions and fossil fuel generations. Individual state plans are due in June 2017 and multi-state plans are due in June 2018. States must begin complying with their plans by 2022, with reductions phased through a “glide path” to 2030. For western state targets see 8/5/15 post http://goo.gl/2desV2

In issuing the rule, the Obama Administration cited environmental and health effects of carbon dioxide, a primary greenhouse gas. According to the EPA, electric power facilities accounted for almost a third of greenhouse gas emissions in the U.S. in 2013. Options for meeting the rule presented by the EPA include increased reliance on alternative energy sources, transitioning from coal to natural gas, and increased energy efficiency.

However, many energy providers that currently rely on coal-fired power plants have already requested a delay in the implementation timeline set forth in the rule. They cite concerns such as increases in electricity rates, decreases in system reliability, and the loss of jobs due to the potential closure of non-compliant plants.

Fifteen coal-reliant states, led by West Virginia and including Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, and Wyoming filed a petition for an emergency stay of the CPP with the U.S. Court of Appeals for the District of Columbia Circuit on August 13, 2015. They argued that amendments to the Clean Air Act in 1990 prevent the EPA from regulating a carbon emissions source, such as existing power plants, under Section 111(d), as these emissions are already regulated under Section 112. The states also argued the EPA is requiring more stringent standards for existing coal-fired power plants than new power plants, thereby undermining the viability of continuing use of the existing facilities. The Court dismissed their petition on September 9, 2015, in a one sentence order stating only that the petition did not satisfy “the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action.” There will be more challenges. Stay tuned.

The CPP is codified at 40 CFR Part 60 [EPA-HQ-OAR-2013-0602; FRL-XXXX-XX-OAR] and is available online at http://www2.epa.gov/sites/production/files/2015-08/documents/cpp-final-rule.pdf, and the Petition for an Emergency Stay is available at http://www.eenews.net/assets/2015/08/14/document_ew_04.pdf.

  2107 Hits
2107 Hits

Gold King Mine Accident Highlights Risks Posed by Abandoned Mines

On August 5, 2015, EPA personnel were working with a private contractor on a water quality project at the Gold King Mine near Silverton, Colorado. The intent of the project was to assess ongoing mine water leakage and to identify and evaluate options for additional mine water treatment and for reduction in the amount of mine water that flows into Cement Creek. In the course of this project, workers inadvertently damaged a tailings pond that had been built to slow and treat mine water outflow. This resulted in destruction of the pond and a discharge of over 3 million gallons of mine waste water and tailings into Cement Creek, a tributary of the Animas River.

Since this event, EPA officials have engaged in ongoing water quality testing and report that contamination levels in the Animas River have decreased to pre-spill levels. The Colorado Department of Public Health and Environment has reached similar conclusions and reports that the river has returned to “stable” conditions which means that that are no human health concerns during typical recreational exposure.

The Gold King Mine was abandoned in 1923, and according to the EPA, mine tailings were directly released into the creeks and rivers in the area until the 1930s. Prior to this 2015 accident, contaminated mine water flowed from this mine at a rate of approximately 7 gallons per minute. That rate briefly increased to more than 500 gallons per minute immediately following the accident. The EPA had previously sought to list the Gold King Mine and surrounding area as a Superfund site which would have provided additional funding for environmental remediation and clean-up. Community input, however, raised concerns about the effect of Superfund status on tourism. As a result, the EPA agreed to postpone seeking Superfund status for the site as long as measurable progress could be made to improve the water quality absent such status.

The accident at the Gold King Mine emphasizes the risks posed by the legacy of mines that were opened, operated and abandoned in the western U.S decades ago during a time when neither the technology nor the regulations necessary for effective water quality protection existed. The Gold King Mine is one of approximately 23,000 such abandoned mines in Colorado, 6127 of which have been reclaimed by the Colorado Division of Reclamation, Mining and Safety. The BLM lists 3400 abandoned mines on BLM-managed lands in Colorado. In the Upper Animas Watershed, where the Gold King Mine is located, there are approximately 400 abandoned and inactive mine sites. Numerous reclamation projects have been completed in that watershed over the last 20 years.

The BLM’s Abandoned Mine Lands Program was created in 1997 to reduce dangers to the public, public lands and the environment from health and other adverse impacts related to hard rock mines at which operations ceased prior to 1981. As of 2014, this Program had over 46,000 abandoned mine sites in its inventory. Of those, approximately one-quarter are remediated, are sites that do not require remediation, or are sites at which remediation actions have commenced.

These site clean-up and remediation actions on federal lands are governed by various federal statutes including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the federal Clean Water Act (CWA), the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA). The lack of a robust federal budget for clean-up of abandoned mine sites and the liability that can attach to non-government actors who attempt clean-up of mine sites has inhibited progress towards addressing this mining legacy in Western states.

  2032 Hits
Tags:
2032 Hits

ENERGY TRANSFORMATION: CLEAN POWER PLAN AND THE WEST

When candidate Obama was running in 2008, he identified energy as his top priority and described his goal as the “transformation of American energy” to address the threat of climate change. On August 2, 2015, the President and the EPA Administrator announced the final rule to implement his Clean Power Plan. The focus of the rule is the reduction of carbon emissions from 2005 levels by 32% in 2030.

The rule is issued under the authority of the Clean Air Act Section 111(d) in what many acknowledge is a big stretch for language that was drafted long before climate change was an issue. The rule came as the result of a 2012 settlement of litigation brought by environmental groups and several northeastern states against EPA. See a just-released Senate Majority Staff, Environment and Public Works Committee Report, “Obama’s Carbon Mandate: An Account of Collusion, Cutting Corners, and Costing Americans Billons” on this “sue and settle” tactic. http://goo.gl/gLaviN

The rule addresses new and existing power plants and establishes a different carbon target reduction from a 2012 baseline for each state. According to EPA, each state has the flexibility to choose how it meets its own carbon targets, but the rule is built on three EPA “building blocks”:
• Make fossil fuel power plants more efficient
• Increase generation form lower-emitting combined cycle natural gas plants for reduced generation from higher emitting coal/gas-fired power plants
• Increase generation from new zero-emitting renewable energy power sources
If a state refuses to develop a plan consistent with the rule, EPA will enforce a federal model plan. The rule encourages states to work together and to develop a “cap and trade” program, similar to a proposal that failed to pass Congress in the President’s first term.

EPA projects compliance costs for the rule of between $$5.1-8.4 billion, with an individual’s energy costs increasing by 3%-1% early in the compliance period, but dropping to a net “savings” in 2030 as a result of reduced energy consumption.

Winners and losers? Obviously coal is the big loser, but surprisingly natural gas also came up short with the Administration backing away from gas as a “bridge fuel” in favor of incentives to support wind and solar generation and demand reduction.

The rule is voluminous – existing power plants are addressed in over 1800 pages, new and modified plants are covered in 900 pages and the EPA model federal plan clocks in at 755 pages. See http://www2.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants

What does the rule mean for the West? Much to the relief of Alaska (and Hawaii) there is no carbon target for these states, yet. Several western states are already on track to meet their carbon targets by 2030 as the result of state law and/or an energy mix already reliant on renewables: California, Washington, Oregon, Nevada and South Dakota. The biggest loser among the states is North Dakota, which saw its 2030 target quadruple from an initially proposed 10.6% reduction to a 44.9% reduction in the final rule. Democratic North Dakota Senator Heidi Heitkamp described the rule as a “slap in the face.” Wyoming, which supplies 70% of the nation’s coal, saw its target double from the draft rule to a 37-44% reduction in the final rule. Wyoming elected officials uniformly attacked the plan with Wyoming Senator Barasso (R) calling it a “job crushing mandate.” Montana was also hit hard with a doubling of its draft goal to a 41% reduction. Montana’s Democratic Governor Bullock said he was “extremely disappointed” by the change, and Montana’s AFL-CIO, which had planned to attend a rally in support of the rule, withdrew in light of the impact of the changed targets on union jobs.

In Utah, where 80% of its power is coal-fired and its renewable energy is sold out of state, elected officials denounced the plan; Senator Orrin Hatch (R) said the rule is “unjustified and potentially devastating for Utah and the nation.” In Colorado, reaction to the state target of a 28% reduction was divided along party lines, with the Democratic Governor Hickenlooper saying he will work to implement the target while Republican Attorney General Cynthia Coffman is considering joining in litigation to challenge the rule. In New Mexico, Republican Governor Susana Martinez and Democratic Senator Tom Udall were united in their belief that New Mexico was ready to comply with the law. See EPA-prepared charts for good summary of state-by-state impacts. https://goo.gl/4rScB4

Opinion among green groups is divided with Environmental Defense Fund Fred Krupp praising the rule as “historic” and an example of Presidential leadership, while the climate researcher and former NOAA scientist, James Hansen, derided the rule as “practically worthless.” The New York Times, in a front page story this week seemed to be “shocked” (see “Casablanca”) that the coal industry was already planning on how to defeat the rule before the rule was published. http://goo.gl/x0yzd3

There is 100% agreement on one thing -- the Clean Power Plan is headed for the courts as soon as EPA publishes the official version of the rule in the Federal Register expected later this month.

  2352 Hits
2352 Hits

EPA Announces Final Rule Defining “Waters of the U.S.” under Clean Water Act

On June 27, 2015, the Environmental Protection Agency (EPA) published the final version of a long-anticipated rule defining the scope of the agency’s power to regulate waters under the Clean Water Act. The rule defines what constitutes a “water of the United States” for purposes of regulation under the Clean Water Act. The publication finalizes a multi-year rule-making process of draft proposals and public comments.

The Federal Water Pollution Control Act Amendments of 1972, commonly known as the “Clean Water Act,” allows the EPA to regulate wetlands, lakes, streams, rivers, and other “waters of the United States.” The Act requires that parties obtain a permit for the discharge of any substance into “waters of the United States.” The vagueness of the term “waters of the United States” has been the subject of significant litigation concerning the scope of waters that fall within the EPA and Army Corps of Engineer’s jurisdiction under the Clean Water Act.

Two Supreme Court cases interpreting the definition of “waters of the United States” added to the confusion. In 2001, the Court ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers that the Army Corps of Engineers exceeded its jurisdiction under the Clean Water Act by interpreting the term “waters of the United States” to include isolated, intrastate, non-navigable waters. In 2006, in Rapanos v. United States, where all nine justices agreed that the term “waters of the United States” includes some bodies of water that are not navigable. However, the ruling was a plurality, meaning that there was no majority ruling definitively defining what qualifies as a water of the United States and what does not. The EPA says that the newly final rule does just that.

According to the EPA press release announcing the final rule, the Supreme Court decisions “threw protections into question for 60 percent of our nation’s streams and millions of acres of wetlands. The new rule states explicitly which types of bodies of water are ‘waters of the United States’ and which are not. Using the latest science and technology, this rule clears up the confusion…about which waters to protect.” Under the Rule, EPA has attempted to establish a bright-line test for determining which bodies of water have a hydrological connection to larger water systems. If a hydrological connection is found, under the rule, the EPA has jurisdiction over those waters.

Critics of the new rule say it represents an expansion of the EPA’s authority and could allow the EPA to require private landowners, especially farmers, to obtain permits or environmental studies for temporary bodies of water like seasonal ditches used for irrigation or even large puddles produced during a rainstorm. Supporters of the new rule say landowners do not need to worry about small and temporary water sources because if a body of water does not flow to a major water system or body of water, the EPA did not and still does not have jurisdiction over it.

The EPA stated when it announced the final rule that no new regulations are being added and that this rule is only a clarification of existing law. However, many land users are skeptical of this claim and believe that the rule not only significantly expands the reach of the Clean Water Act, but also raises more questions about which waters are subject to Clean Water Act jurisdiction than it answers. As of the date of this posting, 22 states have filed suit challenging the rule and numerous trade and agricultural associations have stated an intent to join the challenges.
Unless the pending challenges result in a stay of the rule’s implementation, the rule becomes effective on August 28, 2015. To read the full rule, see: https://www.federalregister.gov/articles/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states

  2223 Hits
2223 Hits

Michigan v. EPA: The EPA Must Consider Costs in Emission Limits

On June 29, in a 5-4 decision, the United States Supreme Court held in Michigan v. EPA that the Environmental Protection Agency (EPA) must consider the costs of industry when deciding to set limits under the Clean Air Act on the emissions of hazardous air pollutants from certain stationary sources such as power plants. The decision, written by Justice Scalia, reversed the decision of the D.C. Court and held that ignoring costs was unreasonable.

The EPA had estimated that the cost of its regulations to power plants would be $9.6 billion per year, and estimated that the benefits from the resulting reduction in emissions would be between $4 million to $6 million each year. However, the EPA conceded that its cost analysis had “played no role” in finding that its regulation was appropriate and necessary. The Court held, “The Agency must consider cost – including, most importantly, cost of compliance – before deciding whether regulation is appropriate and necessary. We need not and do not hold that the law unambiguously required the Agency, when making this preliminary estimate, to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value. It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost.”

The Court remanded the EPA’s mercury and air toxic standards (MATS) to the D.C. Circuit for further proceedings consistent with the opinion.

  1582 Hits
1582 Hits

EPA Proposes Methane Emissions Cuts for Oil and Gas to Meet Climate Change Goals

On January 14, 2015, the Obama Administration announced a plan to reduce methane emissions from oil and gas operations by 40 to 45 percent by 2025. http://www.whitehouse.gov/the-press-office/2015/01/14/fact-sheet-administration-takes-steps-forward-climate-action-plan-anno-1

This announcement is part of the implementation of the President’s 2013 Climate Action Plan, and, in particular, the 2014 “Strategy to Reduce Methane.” President Obama stated then that reducing methane emissions is “critical.” Widely viewed as part of the U.S. “quid” for the “quo” of China’s agreement to peak its greenhouse gas (GHG) emissions by 2030, methane reduction will be a focus of administration policy-making for the next two years.

This 2015 announcement is built on the foundation of several earlier actions. In 2009, pursuant to the Clean Air Act (CAA), the EPA issued the “Endangerment Finding” determining that GHG emissions endanger public health. At that time, the EPA identified methane as one of “the two most important, directly emitted, long-lived greenhouse gases.” 74 Fed. Reg. 66,496, 66,517 (Dec. 15, 2009). Methane is considered to be a more potent GHG than CO2. Also in 2009, the EPA issued a mandatory GHG reporting rule under CAA §114. The oil and gas industry began reporting under subpart W of this rule in 2011. As of 2014, subpart W now covers multiple oil and gas facilities and activities including upstream, gathering and boosting, completions and workovers of fracked oil wells, natural gas distributors, pipeline transportation, and blowdowns of natural gas transmission pipelines between compressors. Finally, in April 2014 the EPA issued five technical “white papers” on oil and gas methane and volatile organic compounds (VOCs) emissions covering compressors, completions/productions, leaks, liquids unloading and pneumatic devices.

The EPA’s 2015 proposal is based on the data collected from the 2009 mandatory reporting rule and the analyses in the 2014 white papers. According to the EPA, methane makes up 10% of GHG and of that total, 30% is contributed by oil and gas. The EPA recognizes that the industry has decreased its methane emissions by 16% since 1990, but is focused on a predicted 25% increase over the next decade. As proposed, these EPA measures apply only to new or modified facilities. Environmental groups will push for application to existing facilities while the industry will argue that voluntary actions have a proven record of achievement.

In order to meet the new goal, the White House proposes several initiatives that will be implemented by several federal agencies:

EPA - New Standards for Methane and VOC Emissions - In the summer of 2015, the EPA will be proposing new standards in a rule for methane and VOCs from “new and modified oil and gas production sources, and natural gas processing and transmission sources” for the oil and gas industry. On January 28, 2015, the EPA called for input from oil and gas small businesses, NGOs and states on the development of a rule to reduce methane and VOCs under the CAA New Source Performance Standards. After considering comments from the states, the oil and gas industry and the public, the EPA will issue a final rule in 2016.
EPA - New Guidelines for Reducing VOCs - The EPA will be developing new guidelines and proposing control measures to reduce VOC emissions from oil and gas operations that states could adopt to help meet air quality standards for ozone. The EPA will publish Control Technique Guidelines (CTG) to address options for VOC emissions in ozone nonattainment areas and states in the Ozone Transport Region.

EPA - Enhanced Leak Detection and Reporting - The EPA will be considering remote sensing technologies to improve the accuracy of reported methane emissions.

BLM - Updated Standards on Public Lands - In April 2015 the BLM will be proposing an update to standards (Onshore Order No. 9) for new and existing oil and gas wells on public lands to reduce venting, flaring and leaks of methane. The final Order is expected in April 2016.

DOT - New Pipeline Safety Standards - Later this year, the Pipeline and Hazardous Materials Safety Administration (PHMSA) will be proposing new natural gas pipeline safety standards to reduce emissions.

DOE - Technology and Emissions Quantification - The federal budget for Fiscal Year 2016 includes approximately $25 million in funding for the development of technology to detect and repair natural gas transmission leaks, development of next generation compressors and quantification of natural gas emissions.

Over the next few years, methane emissions may be reduced automatically if low prices for oil and gas persist and production drops. In the meantime, the emissions reducing strategies outlined above will begin to take effect.

EPA Fact Sheet on the Proposal may be found at: http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/ba7961bf631c87bf85257dcd00526ff7!OpenDocument

  2611 Hits
2611 Hits