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The Insider

Fate Of Major EPA Regulations May Hinge On Court Rulings, Legal Filings

Several recent court rulings and legal filings from EPA and other parties are offering clues about the fate of the agency’s agenda on a range of topics, including vehicle and utility climate rules, water cleanup plans, effluent requirements for power plants and EPA’s ability to revise key air standards.

One major appellate ruling delivered a victory for the Trump EPA, preserving its delay of parts of Obama-era water toxics rules for the power sector:

5th Circuit Backs Broad EPA Power To Revise, Significantly Delay ELGs
A federal appeals court has upheld EPA’s authority to delay until 2020 or beyond the compliance deadlines for two provisions in a 2015 Clean Water Act (CWA) effluent regulation, holding that the agency has broad authority to revise existing water policies and opening the door to setting decades-long deadlines for other sectors’ effluent rules.

The Aug. 28 decision in Clean Water Action v. EPA from a unanimous three-judge panel of the U.S. Court of Appeals for the 5th Circuit rejects several environmentalist arguments that EPA unlawfully extended key compliance dates under its effluent limitation guidelines (ELG) for utilities.

The ruling means power plants need not comply with Obama-era limits for treating wastewater from flue gas desulfurization and transporting certain types of coal ash while EPA weighs revisions to the policy.

While environmental groups argued the Clean Water Act (CWA) requires three-year deadlines in ELGs, the court found it “absurd” that EPA must be held to such a timeline, potentially giving the agency broad deference to set deadlines many years or even decades down the line.

However, another appellate court is signaling that it will reject EPA’s attempt to scrap a lower court ruling that it develop a water cleanup plan under a novel judicial doctrine:

Judges Suggest They May Override EPA Bid To Avoid Temperature TMDL
Appeals court judges are suggesting that they may reject EPA’s appeal of a landmark district court ruling that endorsed a controversial judicial doctrine known as “constructive submission” and required the agency to develop a plan to reduce the temperature of the Columbia and Snake rivers because states have not acted.

Aug. 26 oral argument held by a three-judge panel of the 9th Circuit focused on whether EPA must develop a plan to reduce the temperature of the Columbia and Snake rivers in the Pacific Northwest, where temperatures are rising due to climate change.

A lower court effectively ordered the agency to craft such a total maximum daily load (TMDL) under the “constructive submission” doctrine holding that Washington state and Oregon clearly indicated they will not submit plans and thus submitted a de facto submission of “no TMDL.” EPA is required to approve or disapprove all TMDL submissions, and under the court ruling would have little choice but to disapprove the states’ failure to enact cleanup plans and step in to craft its own.

While attorneys for the agency argued the lower court was wrong, one 9th Circuit judge found the government’s interpretations “implausible” and another suggested the arguments conflict with existing case law.

In climate litigation, EPA is urging the D.C. Circuit to speed its consideration of challenges to its high-profile changes to greenhouse gas standards for power plants:

EPA Urges D.C. Circuit To Expedite Lawsuits Over ACE Utility GHG Rule
EPA is urging appellate judges to expedite their consideration of a host of suits challenging its Affordable Clean Energy (ACE) utility greenhouse gas rule that replaces the broader Obama-era Clean Power Plan (CPP), with the agency hoping to resolve its initial legal defense of the rule before President Donald Trump’s first term ends.

EPA notes that opponents of its Affordable Clean Energy (ACE) rule oppose the move, but argues that policy reasons justify it and that it would nevertheless “appear to serve Petitioners’ interests.”

Many states and other groups have joined litigation over ACE on both sides, and groups have until Sept. 6 to file suit, meaning that additional parties could still be added to the litigation even as EPA seeks to speed the court’s consideration of the matter.

The agency outlines a preferred briefing schedule including a Dec. 5 deadline for petitioners to file their opening brief, a Jan. 27 deadline for the agency to file its response and a Feb. 20 deadline for replies. Under the agency’s proposed timeline, briefing would conclude March 5, and the D.C. Circuit would hold oral argument “as early as” April.

In another climate case, EPA is opposing a move by a power sector group to join litigation over its methane standards for landfills, a move that could block an argument that the agency cannot strengthen certain air rules:

EPA Opposes NRECA Bid To Push Novel Air Law Claim In Landfill Case
EPA is opposing efforts by a group of electric cooperatives to substitute for a disbanded utility group in pending litigation against Obama-era landfill methane rules, a stance that could block efforts by the co-ops to preserve the utility group’s novel claim that EPA cannot strengthen existing standards under section 111(d) of the Clean Air Act.

The National Rural Electric Cooperative Association’s attempt to join the suit is being closely watched because of its potential effect on future EPA efforts, perhaps under a future presidential administration, to strengthen other section 111 rules such as power plant GHG limits.

The claim that EPA cannot strengthen prior rules issued under section 111(d) of the air law -- as the agency did with the 2016 methane standards that updated Clinton-era requirements -- was first floated by the Utility Air Regulatory Group (UARG).

However, that group has since disbanded amid accusations of improperly close ties with a former top EPA official, and it has withdrawn from the landfill litigation. NRECA was a member of UARG, along with several coal-heavy utilities.

Speaking of climate rules, critics of the Trump EPA are citing a recent D.C. Circuit ruling in their attempt to target the agency’s formal determination that it must roll back vehicle GHG rules:

States Cite Test On Guide’s ‘Finality’ To Bolster Auto GHG ‘Finding’ Suit
States and others challenging the Trump EPA’s threshold determination that it must weaken vehicle greenhouse gas standards argue a recent appellate ruling on an EPA air toxics guidance helps their case by backing their prior assertions that the vehicle finding is a final agency action ripe for court review.

A recent filing by petitioners in the auto case cites the Aug. 20 ruling by a split D.C. Circuit panel concluding that EPA’s guidance document scuttling the stringent “once in, always in” air toxics policy is not a final action ripe for court challenge.

But the groups argue the D.C. Circuit’s recent decision in California Communities Against Toxics, et al. v. EPA nevertheless articulates a new legal test for determining when agency policy is “final,” and that EPA’s April 2018 vehicle determination calling for weakening its current vehicle GHG program clearly meets that test.

The litigation had been expected to be merely a prelude to protracted suits over EPA and the Transportation Department’s rollback of Obama-era rules, though judges are scheduled to hear Sept. 6 oral argument on the matter and an adverse decision for EPA could significantly undermine its attempt to scale back the GHG limits.