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The Insider

Fights Ratchet Up Over EPA's Efforts To Ease Air Permitting Mandates

Fights are ratcheting up in Congress and federal courts over EPA's efforts to ease Clean Air Act permitting requirements, with litigation pending over the Trump administration's permitting policies and lawmakers pursuing oversight of agency efforts to ease the permit process.

The disputes, depending on how judges or lawmakers resolve them, could set important precedents on the leeway the agency can offer states or industry for Clean Air Act permits.

Industry groups and some Republican lawmakers have long argued that the air law's permitting process, and EPA's implementing regulations and other policies, are too onerous. Critics say that obtaining a permit can be a highly time consuming and expensive process, which risks deterring companies from launching new investment projects due to the time and cost.

EPA Office of Air & Radiation Assistant Administrator Bill Wehrum is seeking to address those concerns through a series of measures to soften permitting requirements.

But environmentalists are pursuing litigation against the agency, claiming that Wehrum is pursuing measures that unlawfully allow major industrial emitters to avoid strict permit mandates. They have also raised alarm over EPA declining to grant environmentalists' requests for agency objections to air permits that states issue under delegated air law authority.

Among the legal bids, environmentalists have filed a U.S. Court of Appeals for the District of Columbia Circuit case over what they claim is a change in EPA permit policy. They are using an agency decision on a specific facility permit as proof of the policy change.

At May 1 oral argument, the three-judge panel hearing the case pondered EPA’s revised policy barring the agency from “looking under the hood” of Clean Air Act Title V operating permits, in the words of D.C. Circuit Judge Nina Pillard. Title V permits include all “applicable” permit conditions, including underlying new source review (NSR) permits. EPA’s new policy says it may not second-guess states’ decisions about what underlying permits are required, or their terms.

D.C. Circuit Wrestles With Venue For Suit On EPA Air Permit Policy Change
Appellate judges at May 1 oral argument wrestled with which circuit court has jurisdiction to hear environmentalists’ suit claiming a major Trump administration shift in Clean Air Act permitting policy barring the agency from “second guessing” states’ permit decisions is unlawful, but the judges did not indicate how they might rule.

In Colorado, environmentalists are launching fresh legal action against seven oil and gas companies operating near Denver, alleging they flouted Clean Air Act permitting requirements. The suits come amid mounting conflict between the state, supported by environmentalists, and oil and gas drillers over permitting issues and related problems attaining federal ozone standards.

Colorado environmentalists sue oil & gas drillers over permit dispute
WildEarth Guardians is filing Clean Air Act citizen suits against seven oil and gas companies operating in the Denver area, charging that they are unlawfully operating without proper air permits and harming public health due to excess emissions.

The May 3 suit, WildEarth Guardians v. Extraction Oil & Gas, Inc., et al., filed in U.S. District Court for the District of Colorado, alleges that the defendants “illegally constructed and began operating massive sources of air pollution along Colorado’s Front Range region without obtaining legally required permits to pollute. By evading their permitting obligations, these companies have collectively realized an economic benefit of over $400 million. Defendants are operating their facilities unlawfully and their operations should be enjoined until they obtain their required permits,” according to the initial legal filing.

In another D.C. Circuit suit, EPA is defending the legality of a screening tool that aims to help industry project developers avoid onerous air quality impact analysis required under air permitting by demonstrating that their projects’ emissions are “de minimis.”

Environmentalists claim that “significant impact levels” (SILs) are unlawful because they can allow sources to emit in excess of regulatory limits imposed to ensure federal air quality standards are met. EPA says it has discretion to disregard minimal emissions.

Industries defend EPA policy easing air permitting requirements
A broad coalition of industry groups is defending EPA’s policy that allows for the use of “significant impact level” (SIL) screening tools in Clean Air Act permitting, fighting a lawsuit from environmentalists that claims use of SILs helps companies to avoid onerous, but necessary, permit reviews for some projects.

In a legal brief filed April 15, the industry coalition rejects claims by Sierra Club that EPA’s April 2018 guidance establishing SILs for both ozone and particulate matter is unlawful. The coalition counters that the guidance is not binding on regulators, and says that air permit writers must consider other factors as well before exempting industrial projects from further air permit analysis.

Separate from the legal battles, Democrats in Congress are stepping up oversight of OAR's activities and Wehrum, including possible connections between new EPA policies to ease permitting requirements and lobbying efforts by the agency air chief's former law firm:

Wehrum and the firm, Hunton Williams Kurth, find themselves facing fresh scrutiny from Senate Democrats, who are seeking an EPA Inspector General (IG) investigation into accusations of ethics violations by Wehrum and his deputy, David Harlow. Wehrum stands accused of improperly acting on behalf of former industry clients and of adopting regulatory language verbatim suggested by an industry association seeking eased air permit policies.

Senators’ Call For EPA IG Probe Signals More Trouble For Hunton, Wehrum
EPA air chief Bill Wehrum and his former law firm, Hunton Andrews Kurth, appear to be facing new problems with two Democratic senators intensifying their call for an agency inspector general (IG) ethics inquiry into Wehrum after written comments from Hunton were adopted verbatim in an EPA memo easing utility air permit requirements.

One industry source says the law firm is already facing its access to EPA scaled back as a result of the increased scrutiny. “Hunton has been banned from the building,” the source says.

In addition, a House investigation is underway into ties between Hunton’s client the Utility Air Regulatory Group and Wehrum and any potential influence on EPA power plant air rules.

Keep reading Inside EPA for ongoing exclusive coverage of the legal and other battles over the agency's air permitting policies, and the implications of however the fights end.