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The Week Ahead

D.C. Circuit To Hear Vehicle GHG Rule Suit; EPA Hosts Hearing On CWA 401 Rule Changes

Appellate judges will hear oral argument this week in the challenge to EPA’s decision to reopen the “mid-term” review of vehicle emissions standards, with the potential to further unsettle an already-chaotic rulemaking process. Meanwhile, the agency is holding its sole public hearing on the proposal to curtail states’ authority over projects needing Clean Water Act (CWA) section 401 certification.

Vehicle GHG Standards

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument Sept. 6 in State of California et al. v. EPA, et al., where states and others are challenging the Trump EPA’s threshold determination that it must weaken vehicle greenhouse gas standards from figures the Obama administration reaffirmed during its final weeks in office.

Key to the suit is whether the determination itself is a “final action” subject to challenge, or if only the ultimate revisions to the vehicle rule are final. If the D.C. Circuit agrees with California that the case is valid, it would open the door to a ruling that could hinder the Trump administration’s pending rule to loosen the standards. That rule is expected to go final this year, potentially before the court’s decision on the mid-term review, but is already unsettled by California’s deal with four automakers that commits them to a stricter policy.

CWA Section 401

EPA is holding the sole public hearing on its proposed changes to the section 401 implementing rules on Sept. 5 in Salt Lake City, UT. Democratic-led states have already attacked the proposal, which would eliminate their authority to consider a project’s broader “activities” in a CWA review and limit their review to pollution “discharges,” as unlawful. In particular, the rule would block states from considering climate change impacts in their reviews of fossil-fuel projects, after Washington and New York have used section 401 to block new oil, gas and coal infrastructure within their borders.

Election 2020

CNN will host a seven-hour marathon town hall on the “climate crisis” Sept. 4 in New York City, with 10 leading Democratic presidential candidates getting about 40 minutes each to discuss their climate positions. The unconventional format was made necessary by the Democratic National Committee’s vote last month blocking the candidates from appearing on stage together at any event other than the party’s official debate series.

Glyphosate

Comments are due Sept. 3 on EPA’s proposed interim review of the herbicide glyphosate, which reiterates its long-standing view that the chemical is not carcinogenic, despite long-standing claims from environmentalists and some states, most prominently California, that evidence shows a link between the popular weed-killer and some cancers. That question is now pending in litigation that includes tort suits against its manufacturer and a regulatory challenge to California’s mandate to label the chemical as a known carcinogen.

Chesapeake Bay

The Chesapeake Executive Council, composed of the six governors whose states border the bay along with Mayor Muriel Bowser (D) of Washington, D.C., EPA Administrator Andrew Wheeler and Chesapeake Bay Commission Chair Tawanna P. Gaines, will hold its annual meeting Sept. 5 in Oxon Hill, MD. The meeting will focus on states’ recently updated plans to comply with the CWA cleanup plan for the bay, and updates from the council’s advisory committees.

Private Governance

The Environmental Law Institute (ELI) will host a Sept. 6 “master class” session on private-sector environmental initiatives including their legal risks, techniques for managing industry-driven programs and their relationship to the public sector. Inside EPA’s new service Environment Next will have full coverage of the event in Washington, D.C., and what the issue means for the future of environmental protection.

TSCA

The U.S. District Court for the Northern District of California will hold a hearing Sept. 5 in Asbestos Disease Awareness Organization (ADAO) et al v. Wheeler, a closely watched suit that tests the standard EPA will be held to when it rejects a petition for rulemaking under the reformed Toxic Substances Control Act (TSCA). ADAO and its allies are suing over EPA’s denial of their petition to strengthen asbestos reporting requirements in the Chemical Data Reporting rule, are raising claims under the separate legal bars set by TSCA and the Administrative Procedure Act. However, the agency says the case should be limited to the provisions of TSCA.

Ozone NAAQS

EPA will hold a Sept. 6 hearing in Denver, CO, on its proposal to reclassify the city and its surrounding area as in “serious” nonattainment of the national ambient air quality standard (NAAQS) for ozone -- a move that Colorado Gov. Jared Polis (D) requested as it would require additional pollution controls on industry, likely including oil and gas drilling.

Bioplastics

ELI will host a Sept 5 panel discussion in Washington, D.C., on bioplastics, which are polymers made from biomass-based feedstock like woodchips that proponents say would be less carbon-intensive than petroleum-based plastics and present a solution to waste concerns since they are biodegradable.

Children’s Health

EPA’s Children’s Health Protection Advisory Committee (CHPAC) will meet Sept. 5-6 in Washington, D.C. The meeting, which as yet has no public agenda, is CHPAC’s first since Wheeler appointed long-time career staffer Jeanne Briskin as the new director of the agency’s Office of Children’s Health Protection following the controversial removal of Ruth Etzel from the post.

Chlorinated Solvents

The Strategic Environmental Research and Development Program and the Environmental Security Technology Certification Program, which are joint projects between EPA, the Department of Defense and Department of Energy, will jointly host a Sept. 5 webinar on biological tools that can help remediate groundwater contaminated with chlorinated solvents.

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