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The Insider

Federal Courts, Congress Weigh In On Key Environmental Policy Debates

Federal courts and Congress are increasingly weighing in on key environmental policy debates including how to address risks from per- and polyfluoroalkyl substances (PFAS), EPA enforcement, and the best strategy for reducing interstate air pollution.

The latest steps from lawmakers and judges reinforce that the Trump EPA could face headwinds against its work, from deregulatory rulemakings to routine enforcement, as litigation on the merits of its deregulatory agenda heats up and Congress begins to cement a legislative agenda for the next two years.

And EPA itself is wrestling with the sudden withdrawal of former Maine environment head Paul Mercer as Region 1 administrator. Inside EPA broke the news on March 4 that Mercer suddenly declined the post on what was to be his first day on the job, just days after the agency was said to have appointed him as chief of the region that oversees New England states:

Mercer, EPA Region 1 Administrator Pick, Withdraws At Start Of Tenure
Former Maine environment chief Paul Mercer has declined the role of EPA Region 1 administrator on the day he was due to start the position, following environmentalists’ criticism that his work under the state’s former conservative governor would bolster the agency’s deregulatory agenda and hurt morale in a region with shrinking staff levels.

An EPA spokesman called Mercer’s withdrawal “a matter of personal privacy” and declined to offer further details. But environmentalists and other Trump administration critics had already attacked his appointment, arguing that he would bolster the agency’s deregulatory agenda and shrink the region’s staffing levels.

In court, a federal district judge has rejected arguments from a Missouri utility that the Clean Air Act does not allow court injunctions aimed at remedying past violations of the law -- such as imposing a mandate for a facility to adopt more effective emission-reduction systems. The argument was seen by many observers as a “long shot,” but could have had major consequences for EPA’s enforcement program had it succeeded:

Judge Rejects Novel Claim That Air Act Fails To Grant Injunctive Relief Power
A federal judge has rejected a novel claim by Missouri-based utility Ameren that he lacks Clean Air Act authority to order injunctive relief to remedy past harms, dismissing what sources describe as a long-shot argument that runs counter to what EPA -- and federal courts -- have successfully been doing for decades.

Despite the loss for Ameren, at least one more court is set to consider a similar question. The U.S. Court of Appeals for the 5th Circuit is weighing an en banc rehearing petition in United States v. Luminant Generation, where the Texas utility is hoping to overturn a split panel’s ruling that said EPA can seek injunctive relief for violations of the air law even when the five-year general statute of limitations has passed.

The court ruling comes as officials from Eastern states used a recent Senate environment committee hearing to attack EPA’s air enforcement policies, arguing that the agency needs to do more to curb interstate pollution that prevents them from achieving nationwide ambient air standards:

Eastern States, Senate Democrats Fault EPA Interstate Air Pollution Policy
Eastern states and Senate Democrats are attacking what they say is EPA’s inadequate approach to policies for curbing interstate air pollution hindering states’ attainment of federal air standards, with several states ramping up technical and legal challenges to the agency while senators attack funding cuts to key emissions programs.

Meanwhile, state-level officials in New Mexico are sparring with the Department of Defense on whether closely watched litigation on their new permit limits for PFAS chemicals will proceed in state or federal court, which could greatly limit the precedent set when judges decide the merits of the case:

New Mexico Court Push May Limit Impact Of Key Suit On State PFAS Powers
New Mexico officials are seeking to steer Defense Department litigation challenging their permit restrictions on per- and polyfluoroalkyl substances (PFAS) to state court, a move that if successful could limit any precedent the litigation may set on federal officials' ability to challenge such state actions.

And in Congress, the House is moving bipartisan legislation that would more than double funding levels for EPA’s revolving loan program that funds clean-water infrastructure, in addition to billions of dollars in new authorizations for other water programs:

Bipartisan House Bill Would Boost EPA Water Infrastructure Funding Levels
A bipartisan group of House lawmakers has introduced legislation to boost authorized levels of EPA's clean water state revolving fund (SRF) to $4 billion annually, more than double its current appropriations, as well as authorize billions of dollars to address sewer overflows, fund states' Clean Water Act (CWA) implementation and augment existing sources of water.

While that infrastructure bill represents a rare bipartisan move on environmental issues for the current Congress, some lawmakers are hoping they can make a similar push on climate that would focus on carbon taxes as a counterpoint to progressive Democrats’ more radical Green New Deal:

Republican Carbon Tax Backer Sees Green New Deal As Political Opening
One of the few House GOP backers of a carbon tax is praising the Green New Deal (GND) as opening up the political “space” for his party to embrace what he says are more reasonable policies to curb greenhouse gases, confirming fears by hard-line opponents of carbon controls who are attacking the GND to preclude such scenarios.

“Yeah, it has stimulated a lot of discussion,” Rep. Francis Rooney (R-FL) told reporters Feb. 28, arguing more broadly that the GOP has become the party of “no” on climate change and risks ceding the issue to Democrats if it does not step up to support policies to address it. Rooney co-sponsored carbon tax legislation in the last Congress, along with Rep. Brian Fitzpatrick (R-PA) and former Rep. Carlos Curbelo (R-FL), and is planning similar legislation this year.