Which air quality regulatory actions are most likely to see noteworthy litigation activity in 2017? My colleagues Krista McIntyre and Rachel Cox are guest-blogging today with commentary on key areas we’re watching: the Clean Power Plan, Boiler MACT and Methane Rule.
All eyes are on the D.C. Circuit Court of Appeals for a decision on the enforceability of the Clean Power Plan under the CAA. Regardless of the outcome, observers predict review by SCOTUS. President-elect Trump’s views on climate change could influence the litigation in three not-so-subtle ways: (1) new EPA and DOJ leadership could less zealously pursue defense of the Plan; (2) a fast track appointee to SCOTUS could influence that body’s inevitable review; and (3) the new administration could withdraw from the litigation altogether. Whatever play the new administration may be considering, however, the only “win” is a full judicial knockout. A remand prompting rulemaking, even rulemaking that repeals the regulations, risks more litigation from states, cities and environmental groups that support the current Plan. Noteworthy litigation to follow. Wouldn’t it be easier for the new administration to embrace the Clean Power Plan, winning a few symbolic points from their critics, and then direct EPA to exercise all the discretion and leniency created by the rules to ease implementation?
Last month the D.C. Circuit Court of Appeals remanded the Boiler MACT regulations, originally vacated, to EPA to conform to the court’s earlier July 2016 ruling. The court was persuaded that vacating the emissions standards would carry more harmful effects, allowing greater emissions until EPA completes rulemaking. Now the work begins on review of standards and EPA’s decision to exclude certain sources from its calculations in setting emissions limitations. The court’s earlier ruling was unclear about exactly which MACT subcategories were subject to its ruling. EPA has yet to issue its interpretation and listing of affected subcategories. The court did not impose a schedule, but an expectation for promptness and an invitation to initiate a mandamus petition, if needed, were clearly expressed in the recent opinion. We probably haven’t heard the last of this one. Wouldn’t it be nice to get these Boiler MACT rules completed so regulated entities have certainty about compliance expectations?
In 2016, EPA finalized the Methane Rule as part of the Obama Administration’s efforts under its Climate Action Plan to reduce greenhouse gas emissions. The Rule requires oil and gas companies to significantly reduce emissions from new, reconstructed and modified processes and equipment at hydraulically fractured oil wells, among other sources. The Methane Rule was appealed to the D.C. Circuit Court of Appeals by 15 states, including gas-rich North Dakota, arguing that the Rule is unnecessary and costly. It is unclear whether the Trump Administration will continue this legal battle defending the Methane Rule, but in our opinion this is unlikely. EPA has also been in the process of gathering information from industry on possible new regulations on methane emissions from existing oil and gas operations. This rulemaking will now be left to the Trump Administration, but our best guess is that the effort will be abandoned. Stay tuned for updates on the fate of the Methane Rule and other rules that hang in the balance during the change in administration!