Forgot password?
Sign up today and your first download is free.

The Week Ahead

High Court Slated To Weigh CSAPR, E15 Waiver; House Panel Marking Up Waste Bills

Posted: June 17, 2013

The Supreme Court is slated to decide whether it will review key appellate rulings addressing EPA's cross-state air pollution trading program for utilities, as well as the agency's approval of gasoline blended with 15 percent ethanol. A House panel is scheduled to mark up a package of bills bolstering states' authority to manage and remediate waste, including a measure preempting EPA from regulating coal ash.

In Court

The Supreme Court justices are slated to consider whether to review two important EPA-related cases -- one dealing with the agency's cross-state air pollution rule (CSAPR); the other over EPA's approval of E15 ethanol -- at their upcoming conference slated for June 20, their last before their current term ends.

While the justices could announce as early as June 24 whether they will hear either of the cases in their next term, which begins next October, they could also delay their consideration of the pending petitions until their next conference, which is slated for Sept. 30.

In the suit over CSAPR, EPA, et al. v. EME Homer City Generation, et al., EPA, eastern states and environmentalists are urging the high court to reverse a split appellate ruling from the U.S. Court of Appeals for the District of Columbia Circuit that found that EPA exceeded is Clean Air Act authority in how it implemented the utility emissions trading program. But industry groups and other states are pressing the high court to let the appellate ruling stand.

CSAPR would have established an emissions trading program for sulfur dioxide (SO2) and nitrogen oxides (NOx) from power plants in 28 states in the eastern half of the country. The rule was a replacement for the Bush-era Clean Air Interstate Rule that the D.C. Circuit remanded to EPA after finding legal flaws in the rule.

In its final briefs filed earlier this month, the Department of Justice (DOJ), on EPA's behalf, reiterates earlier EPA arguments that the appellate ruling sets complicated requirements for a replacement air transport rule that are near-impossible to implement, and also rejects claims outlined in recent filings by industry and state opponents of the rule in which they said that there are several procedural hurdles preventing high court review.

For example, industry and states had argued that, frequently, the existence of such a circuit split on legal issues is a reason for the high court to hear a case -- and that there is no circuit split in the CSAPR suit. But DOJ counters that there does not need to be a circuit split for the Supreme Court to hear the transport rule appeal.

The department notes that the D.C. Circuit is the sole court to review major EPA rules, and hence there is no need for a circuit split to grant review. “[T]his objection fails in light of the [air law's] grant of exclusive jurisdiction to the D.C. Circuit to review all nationally significant rules, which greatly diminishes the likelihood of any circuit split,” DOJ says.

In the suit over EPA's approval of E15, Grocery Manufacturers Association (GMA) v. EPA, industry groups are urging the high court to reverse the D.C. Circuit's decision that food and oil industry groups lack standing to challenge the agency's decision because they are not directly harmed by the approval.

A ruling from the justices could have an impact in environmental litigation because it could determine when when plaintiffs have standing to sue over EPA rules if they are not directly affected by the policies.

In their final briefs filed earlier this month, industry petitioners urged the high court to review the D.C. Circuit's ruling, saying the court should use the case as a vehicle to resolve a circuit split on when groups not directly regulated by EPA rules have "standing" to challenge them in court.

Citing past cases where the high court has resolved competing circuit opinions about whether an issue like standing is "jurisdictional" and must be considered by courts, the critics of the waiver say that the E15 suit gives justices a chance to definitively say whether "prudential" standing is an issue courts must consider in allowing cases to proceed.

In other litigation news, a federal court in Michigan is slated to consider how it will proceed in a long-running case testing electric utilities' claims that Bush-era reforms to EPA's new source review (NSR) rules limited EPA's pre-construction permit enforcement powers and only allowed NSR enforcement based on post-project data.

The U.S. District Court for the Eastern District of Michigan is slated to hold a status conference June 20 in United States v. Detroit Edison (DTE), in which the agency is seeking to file NSR claims before a project has begun construction.

DTE is asking the court to grant summary judgment and dismiss the enforcement case in a motion that says it satisfied all pre-construction requirements of the NSR program, which says existing facilities that undertake projects that boost emissions must install modern pollution controls. But EPA is asking the court to allow it to add new enforcement claims in a competing motion.

The litigation is back in the district court after the the U.S. Court of Appeals for the 6th Circuit in March granted EPA a limited remand of the district court's original ruling restricting the agency's ability to file an enforcement action prior to construction commencing.

Industry says the narrow remand is actually a win for DTE because it finds that the agency cannot second guess industry pre-construction emissions projections and must instead rely on after-the-fact monitored data. EPA argued this was a false reading of 2002 NSR reforms that would “eviscerate” its enforcement power, and that the agency never ceded its ability to use its own pre-construction projections.

In Congress

The House Energy & Commerce Committee is scheduled June 19 to mark up a series of GOP-backed bills that seek to amend federal waste laws and give more power to the states in decisions over the prioritization of sites for federal clean up and disposal of coal ash, among other things.

While Republicans made a series of changes to the bills before markup, none has received Democratic support -- raising questions about their chances in the Senate.

The coal ash bill, H.R. 2218, which creates a state permitting program with federal oversight for the disposal of coal ash, in particular is raising concern among Democrats and environmentalists who say the measure is too weak and fails to offer adequate protection for human health and the environment.

The other bills at issue are H.R. 2226, which would allow states greater input into EPA decision on Superfund cleanups and site listings; H.R. 2279, which eliminates deadlines for EPA to issue and revise various rules under the Resource Conservation & Recovery Act and the Superfund; and H.R. 2318, which explicitly waives sovereign immunity to allow states to sue federal agencies over Superfund cleanup decisions.

The Energy & Commerce Committee's environment and economy panel approved the bills without amendments June 6 on a series of party-line votes.

Climate Change

As the White House prepares to unveil its long-awaited climate change policies, many are focusing on ways to make infrastructure more resilient -- an issue the administration is considering addressing in a pending executive order.

The National League of Cities (NLC) is launching its Resilient Communities for America campaign June 17, with dozens of local elected officials seeking to improve communities' abilities to deal with extreme weather, energy security, faltering infrastructure and economic uncertainty. NLC estimates that heat waves, droughts, hurricanes and flooding cost the country an estimated $188 billion in 2011-12 and is seeking to secure greater state and federal funding and other types of support for local governments' initiatives on resilience and preparedness.

As part of a multi-year resiliency campaign, NLC has also been urging municipal officials to lobby members of Congress to support legislation that would create an interagency work group to analyze federal agencies’ activities on extreme weather resilience and develop a plan to support state and local resiliency efforts.

The Bipartisan Policy Center is hosting a discussion June 17 on how government and business leaders can provide resiliency for electricity generation during natural disasters. The discussion with executives from Hess Corporation and National Grid U.S., which are leading power and gas providers in the Northeast, will touch on the roles of government and businesses following natural disasters and what all sectors can do to better prepare for hurricanes this season.

In addition, The New Republic and the Center for Congressional and Presidential Studies at American University is hosting a June 18 event, titled The Politics of Climate Change Forum: Forecasting the Future of Climate Change Policy in the United States.

Speakers include John Balbus, senior advisor for public health, National Institute of Environmental Health Sciences; Anne Kelly, director for innovative climate & energy policy, Ceres; Daniel Lashof, director, climate & clear air program, Natural Resources Defense Council; and John Podesta, chair, Center for American Progress.