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The Week Ahead

Posted: June 30, 2014

Court Weighs Next Steps For CSAPR Litigation, EPA Readies Reply In Jobs Lawsuit

EPA has asked a federal appeals court to lift its stay on the implementation of the Cross-State Air Pollution Rule (CSAPR), and groups involved in lingering litigation over the rule will tell the court later this week how it should proceed. In a separate legal challenge, EPA is poised this week to file its first reply to a mining sector suit claiming that the agency is ignoring a Clean Air Act mandate to review the potential for its utility air rules to affect employment levels.

CSAPR Challenges

States, power industry groups and others will tell a federal appeals court by July 3 how it should proceed with remaining litigation over EPA's Cross-State Air Pollution Rule (CSAPR).

The U.S. Court of Appeals for the District of Columbia Circuit in a 2-1 ruling in EME Homer City Generation, L.P. v. EPA vacated CSAPR, finding flaws in how EPA crafted the emissions cap-and-trade program, and in how it imposed the rule on states. But the Supreme Court in an 6-2 decision issued April 29 reversed the ruling and remanded it to the D.C. Circuit.

Although the high court's decision broadly upheld EPA's Clean Air Act authority for creating CSAPR, it did not resolve several pending lawsuits over the rule that the D.C. Circuit did not address in its ruling. Therefore, those cases must now be resolved at the appellate level.

Following the Supreme Court's decision, the D.C. Circuit issued an order setting a July 3 deadline for filing motions to govern future proceedings in the remaining CSAPR challenges, which include fights over technical corrections to the rule and various other provisions. Legal observers doubt that any remaining suits pose a major legal risk for undoing the entire regulation.

Nevertheless, the D.C. Circuit stayed implementation of the rule until all legal challenges are resolved. But the Department of Justice on EPA's behalf last week asked the court to lift the stay in light of the Supreme Court's decision. EPA wants the court to extend the cap-and-trade emissions program's compliance deadlines by three years to account for implementation delays caused by the long-running litigation. EPA says lifting the stay would have minimal adverse impacts on regulated states and utilities as most sources are already in compliance with the rule.

EPA Rules' Jobs Impacts

EPA is poised to file its initial reply June 30 in a lawsuit filed by Murray Energy and a host of mining and power companies claiming that the agency is violating Clean Air Act section 321, which they argue requires a continuous review of air rules' jobs impacts.

The energy companies say that EPA has never evaluated the potential loss or shifts of employment that may result from administering or enforcing the air law. They say this violates section 321(a), which says that the administrator shall "conduct continuing evaluations of potential loss of shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closure or reductions in employment allegedly resulting from such administration or enforcement," according to the initial compliant, which has since been amended.

The challenge highlights a long-running fight between EPA and its industry critics of the costs of regulations -- particularly those affecting the coal-fired utility sector that the agency's opponents claim are part of the Obama administration's “war on coal.”

EPA often argues that the economic and health benefits of its rules far outweighs the costs, but critics say these figures are inaccurate and that the agency's policies -- including its utility air toxics regulation and pending climate rules for power plants -- impose massive costs.

PVC MACT Suit

Industry groups pursuing a lawsuit over EPA's polyvinyl chloride (PVC) maximum achievable control technology (MACT) air toxics rule are slated to file a joint brief July 1 with the U.S. Court of Appeals for the District of Columbia Circuit that is hearing the suit.

The court recently denied the PVC industry's request to stay implementation of the rule pending resolution of litigation over the rule, which environmentalists say is a “victory” for public health.

PVC manufacturing groups say the MACT limits are set to go into effect on April 17, 2015, but because parts of the rule are “impossible” to meet, they will have to stop creating certain resins or shut down entirely to comply. But their litigation and the briefing schedule will continue without a stay of the rule, meaning its implementation can continue.

Lead Paint Framework

EPA is taking comment through June 30 on a draft framework that agency staff will use to determine whether to regulate lead paint exposures stemming from renovation of public and commercial buildings but agency staff continue to review less-established data on lead's adverse health effects to adults that will be needed to make the regulatory determination.

SO2 NAAQS Decree

EPA is requesting public input by July 2 on a proposed consent decree with environmentalists that would set legally binding deadlines for the agency to make overdue designations for which areas of the United States are either attaining or in nonattainment for the sulfur dioxide national ambient air quality standard (NAAQS).

Environmentalists say EPA failed to meet a Clean Air Act mandate to finalize by June 3, 2013, all remaining designations for the 2010 NAAQS established at 75 parts per billion over one hour.

The decree would resolve the litigation by imposing a series of binding deadlines through 2020 for the agency to make the final determinations.

Emissions Modeling

Comments are due June 30 on EPA's 2018 emissions modeling platform, including modeling, inventory, and related data for 2018. According to the agency, “The data will be processed and used as input data for air quality models, the results of which will be used in support of multiple rulemaking and non-rulemaking analyses.”

SCAS/LGAC Waters Call

EPA's Small Community Advisory Subcommittee (SCAS) and Local Government Advisory Committee (LGAC) will hold separate conference calls July 3 to discuss EPA's Clean Water Act (CWA) jurisdiction proposed rule and related issues about waters of the United States.

The proposal that SCAS and LGAC will discuss has prompted significant push-back from industry, Republicans and others who say it would massively extend EPA's regulatory reach over U.S. waters far beyond what lawmakers intended with the CWA.

SAB-BOSC Calls

EPA's Science Advisory Board and Office of Research and Development Chartered Board of Scientific Counselors are holding a series of teleconferences this week on key research issues.

According to a recent Federal Register notice, the SAB-BOSC calls this week include a July 1 call on EPA's Human Health Risk Assessment program; a July 3 call on the agency's Air, Climate and Energy program; and a July 3 call on its Chemical Safety for Sustainability program.

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