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The Week Ahead

Posted: June 23, 2014

Experts Weigh Impact Of High Court GHG Ruling, EPA Considers Key Risk Analyses

As the Supreme Court wraps up its 2013 term, many legal experts are assessing the court's ruling that narrowed EPA's authority to permit greenhouse gases and its impact on the agency's pending sector-specific performance standards. EPA is holding a days-long meeting that will consider issues associated with its pending risk assessments of arsenic and hexavalent chomium.

Supreme Court

The Supreme Court's just-issued decision to narrow EPA's authority to permit greenhouse gases (GHGs) is already prompting questions about the agency's power to craft GHG performance standards for power plants and other facilities -- and the certain legal challenges those rules are likely to face.

One place where the issue is likely to get a hearing is at the June 24 “debrief” being hosted by the Environmental Law Institute (ELI), together with various bar associations, on the high court's ruling in Utility Air Regulatory Group v EPA.

In its highly anticipated ruling, the high court overturned part of EPA's trigger for when new or modified sources must seek permits for their GHG emissions, holding that the agency can only impose GHG limits in permits when a facility's conventional emissions would require it.

Speakers at the ELI event include Stephen Bradbury and Thomas Lorenzen, both former Justice Department officials, Lisa Heinzerling of Georgetown Law School and Benjamin Longstreth of the Natural Resources Defense Council. Former EPA General Counsel Roger Martella moderates.

With the high court wrapping up its 2013-14 term this month, several other organizations are beginning to look ahead to the court's next term, which begins in October, even as they look back at the term that is drawing to a close.

The Washington Legal Foundation and the U.S. Chamber of Commerce are each holding June 25 events to review rulings in the 2013 term. And the American Constitution Society for Law and Policy is holding its Supreme Court review on June 27.

In addition to the ruling in the GHG case, in its 2013 term the high court also backed EPA's cross-state air pollution rule and narrowed the Superfund law's preemption of state limitations on tort claims filed by plaintiffs who have been exposed to chemicals at waste sites.

For the 2014 term, the court has so far rejected several environmental policy petitions, including cases dealing with EPA's authority to veto projects permitted by the Army Corps of Engineers, the extent to which the Clean Air Act preempts state nuisance claims, and individual dischargers' liability in a shared storm sewer system.

The justices have accepted one important administrative law case, Thomas Perez, et al. v. Mortgage Banking Association (MBA), et al. and Nickols, et al. v. MBA, et al, which tests whether agencies must follow notice-and-comment rulemaking to revise their existing interpretations of rules -- an issue that could be important for EPA's interpretive rule exempting scores of agricultural practices from Clean Water Act permit mandates.

But several important petitions are still pending, including energy industry requests to overturn California's low-carbon fuel standard and EPA's ozone standard. And industry lawyers have indicated they plan to petition the justices to review EPA's air toxics rule for power plants, a regulation that could also have bearing on EPA's upcoming GHG performance standards.

Risk Assessment

EPA's Integrated Risk Information System (IRIS) program is holding its regular bimonthly meeting June 25 -- 27, but the focus on two hot-button pending risk assessments -- for arsenic and hexavalent chromium (Cr6) -- are already proving controversial.

EPA staff have recently re-started both assessments -- both of which could drive significant new regulatory costs -- after earlier drafts with stringent cancer risk numbers led to opposition from industry and some state regulators.

Environmentalistsare already criticizing EPA for allowing industry to dominate discussion of the arsenic event, enhancing their ability to influence any final outcome. Environmentalists are also urging EPA to maintain its strict approach for assessing Cr6, pushing back against long-standing industry calls to soften its risk methods.

On Capitol Hill

House Republicans are holding several hearings and markups this week that will provide an opportunity for lawmakers to criticize EPA and trim the agency's authority.

The House Government Reform & Oversight Committee is holding a June 25 hearing, entitled “Management Failures: Oversight Of EPA,” that will likely provide much of the fireworks. EPA Administrator Gina McCarthy is slated to testify before a committee that has been aggressively investigating several agency actions, including McCarthy's handling of John Beale, the former agency official convicted on fraud charges; its plan to veto the proposed Pebble Mine and its refusal to subject its homeland security office to Inspector General oversight. Sen. David Vitter (R-LA), the ranking Republican on the Senate environment committee, is also slated to testify.

Meanwhile, the House Science Committee June 24 is marking up legislation, H.R. 1422, that would bar EPA from “proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible.”

In other House action, the Natural Resources Committee's water panel is holding a June 24 hearing entitled, “New Federal Schemes to Soak Up Water Authority: Impacts on States, Water Users, Recreation, and Jobs,” that will likely target EPA's controversial proposed rule clarifying the reach of the Clean Water Act. The committee's panel on public lands and environmental regulation is also holding a June 25 hearing on "Increasing Carbon Soil Sequestration on Public Lands"