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The Week Ahead

Appellate Courts Hear Water Act, Haze Suits; McCarthy Discusses Climate Change

Posted: May 12, 2014

Federal appellate courts in Richmond, VA, and San Francisco are slated to hear a series of cases that define the reach of EPA and others' power to enforce Clean Water Act permits and weigh the adequacy of states' efforts to control emissions that form haze. EPA Administrator Gina McCarthy will speak on climate change issues and the agency is under court order to issue its long-awaited cooling water intake rule.

Clean Water Act Litigation

The U.S. Court of Appeals for the 4th Circuit, located in Richmond, is slated to hear arguments this week in two suits that will determine the reach of EPA's permit powers under the federal Clean Water Act (CWA).

The first case, Lois Alt v. Chesapeake Bay Foundation (CBF), slated for arguments May 13 will determine whether CBF should have been allowed to intervene in first-time litigation over EPA's power to require CWA permits for releases of farm dust, manure, feathers and other litter from a concentrated animal feeding operation (CAFO) in West Virginia, despite industry arguments that the case can be resolved solely through written briefs.

A ruling for the environmentalists could lead to a lengthy wait to resolve the underlying case that CBF is seeking to enter. CBF is asking the appellate court to return the litigation to the district court -- which ruled for industry in 2013 -- for further briefing and a new decision, before the appeals court would consider the case again.

In addition to testing the question of CAFO permitting on the merits, further litigation on the issue could also provide a potential test of the broader question of how much deference courts should grant EPA and other agencies to interpret their own rules, an issue on which the Supreme Court has invited new litigation.

While the Altcase is pending, a recently filed case in North Carolina --Rose Acre Farms, Inc. v. North Carolina Department of Environment & Natural Resources, et al -- could provide a new legal test on the permit issue. North Carolina regulators are slated to respond to the facility's complaint May 12.

The 4th Circuit is also set to hear oral arguments May 14 in one of two pending cases that could narrow the water act's “permit shield” that protects facilities from citizen suits and other enforcement actions.

A three-judge panel will hear arguments in Southern Appalachian Mountain Stewards, et al. v. A&G Coal Corp, which tests when a facility that holds a CWA discharge permit is liable for discharging pollutants not addressed in the permit terms.

Even as the court prepares for arguments it is seeking EPA's views on the subject, asking the Department of Justice on behalf of EPA to file a brief in the case even though the federal government is not a party to the suit.

EPA has already argued as amicusin a pending 9th Circuit case, Alaska Community Action on Toxics (ACAT), et al. v. Aurora Energy Services, LLC, et al., that facilities should be liable when they discharge a pollutant not covered by a general permit. But the agency has yet to take a side on how the provisions should apply to facilities covered by individual discharge permits.

A victory for environmentalists in the 4th Circuit would narrow the protection offered to industry by provisions in the CWA that shield permittees from liability for otherwise unlawful discharges if they can show they comply with the terms and limits outlined in a lawfully issued National Pollutant Discharge Elimination System permit.

Cooling Water Rule

EPA is slated May 16 to finalize its long-awaited CWA section 316(b) rule governing cooling water intake structures at power plants and other industrial facilities, one of several major pending regulations concerning power plants.

Letters from utility executives show EPA making some changes to address industry concerns, and EPA Administrator Gina McCarthy recently acknowledged the rule's potential impact on the sector, saying, "I think they will find that when this final rule is released that we have listened very closely to their comments."

Industry remains concerned about an ongoing Endangered Species Act review of the rule, which has been the source of repeated delays in finishing the regulation. If EPA misses its latest target date, a federal judge plans to reopen litigation that could lead to a court-ordered deadline.

Environmentalists, who have signaled they could sue once EPA issues the final rule, say they have low expectations for what EPA will include in the final rule.

Climate Change

McCarthy is set to address the Association of Climate Change Officers' (ACCO) 2014 Climate Strategies Forum, where she is likely to highlight the administration's public outreach campaign to highlight the findings of the just-released third National Climate Assessment (NCA).

Now that the comment period has closed on EPA's proposed greenhouse gas (GHG) rule for new power plants, and the agency is slated to propose its rule for existing plants, McCarthy will almost certainly discuss the agency's regulations -- the cornerstone of the administration's plan to address GHGs.

Haze Litigation

The U.S. Court of Appeals for the 9th Circuit will hear oral arguments this week in two cases relating to states' efforts to impose best available retrofit technology (BART) emissions control requirements on industrial sources in order to cut haze-forming emissions.

Under EPA's regional haze program, states are obliged to write state implementation plans (SIPs) outlining the pollution controls they will impose in order to help meet the haze program's goal of improving visibility in national parks and wildernesses areas. But EPA has found some SIPs inadequate and imposed federal implementation plans (FIPs) in which it writes the pollution control mandates, while environmentalists have sued over some SIPs as too weak.

On May 14, the 9th Circuit will hear arguments in WildEarth Guardians v. EPA, et al., in which the environmental group is challenging EPA's approval of Nevada's haze SIP. Wildearth Guardians says the pollution controls in the federally approved SIP do not represent BART.

One day later, the court will hear oral arguments May 15 in National Parks Conservation Association (NPCA), et al. v. EPA, et al. and a related case PPL Montana, LLC, et al. v. EPA, et al. Both cases raise competing challenges to portions of an EPA rule that imposed a FIP on Montana for several sources of haze-forming emissions, while making changes to parts of the state's SIP.

On Capitol Hill

House and Senate conferees are poised to release their long-awaited legislative deal for creating a new EPA pilot program that will provide low-interest loans to municipalities to help fund large water infrastructure projects.

Lawmakers indicated last week that they reached a deal creating the Water Infrastructure Finance and Innovation Authority (WIFIA) as part of a broader bill funding the Army Corps of Engineers.

Because the conference report has not yet been released, few details of the final program are available, though Rep. Bob Gibbs (R-OH) said recently that it mirrors draft legislation he floated in 2012.

While lawmakers are not likely to vote on the final conference report for at least a week, the deal appears to bring to an end the long-running debate over the program, which municipal officials say will provide them with much-needed infrastructure funds while states are concerned they will be shut out of the program.

Elsewhere on Capitol Hill, the Senate Environment & Public Works Committee's water and wildlife panel will hold a May 13 hearing to address the environmental impacts of stormwater runoff from highways and other federally funded transportation infrastructure, as part of the build-up to a transportation omnibus bill.

The discussion will include “an overview of the threats posed by stormwater to water quality and the structural integrity and effectiveness of our infrastructure; the costs associated with polluted stormwater runoff; and policy solutions to address these impacts,” according to a May 9 press release announcing the hearing.

Sen. Ben Cardin (D-MD), chairman of the subcommittee, has long pressed for transportation spending bills to include provisions to mitigate stormwater runoff. For instance, in 2010 he worked to require highway projects to incorporate first-time federal stormwater mitigation plans. And in 2005 he championed a provision in that year's transportation spending bill to earmark $900 million over six years for stormwater control. However, the language was stripped in confrerence negotiations.

Witnesses scheduled to speak at the May 13 hearing include Paul Mather, highway division head at Oregon's department of transportation; Kim Coble, of the Chesapeake Bay Foundation; and former Virginia Attorney General Ken Cuccinelli, who won a key victory restricting EPA's authority to regulate stormwater runoff through pollution control plans, in Virginia Department of Transportation (VDOT), et al., v. EPA.

The environment committee is also holding a May 14 hearing to solicit stakeholder views on nuclear power plant decommissioning.

The Senate homeland security committee is holding a May 14 hearing on the Department of Homeland Security's (DHS) Chemical Facilities Anti-Terrorism Standards (CFATS) program, signaling the panel is preparing to follow House lawmakers and authorize the program.

Last month, the House homeland security committee approved legislation authorizing the program, which until now has been operating on temporary authority provided by annual appropriations bills. But this has created problems, including during the government shutdown last year, when CFATS' authority lapsed, leaving more than 4,000 high-risk facilities without federal security oversight -- the first lapse of CFATS since the program started.

During the House markup, lawmakers agreed on a compromise plan to require DHS to study whether subjecting drinking water and wastewater plants to the department's security rules, rather than EPA oversight, would strengthen the facilities against possible terrorist attacks.

The Senate committee's emergency management subcommittee is also holding a May 14 hearing, titled “The Role of Mitigation in Reducing Federal Expenditures for Disaster Response,” that will focus on limiting risks of flooding and other disasters.