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The Week Ahead

Comments Due On Landfill Emissions Rule Delay; DOJ Readies CWA-Groundwater Briefs

While EPA remains shuttered thanks to the partial government shutdown, comments are arriving this week on pending rule proposals including the delay of deadlines in Obama-era methane standards for landfills. The Department of Justice (DOJ) is scheduled to weigh in on two closely watched Supreme Court cases testing Clean Water Act (CWA) limits for groundwater-borne pollution.

Landfill Emissions

Jan. 3 is the deadline for public comments on EPA’s proposal that would postpone deadlines for state implementation plans under the 2016 landfill methane rule until August 2019, establishing a three-year time frame the agency says is consistent with revisions to the Clean Air Act section 111(d) framework being proposed in its Affordable Clean Energy greenhouse gas rule for power plants.

However, states and industry groups have clashed over the planned extension; at a Nov. 27 public hearing Maryland officials warned that it would hurt states’ ability to control the potent GHG while the waste industry has downplayed the change as a minor one that “really has no impact” for the sector.

Groundwater Pollution

The Supreme Court is asking DOJ to file briefs by Jan. 4 that will set out for the first time the Trump administration’s position on the contentious question of whether the CWA limits pollution that travels through groundwater to contaminate rivers, lakes and other above-ground waterbodies. The justices are seeking DOJ’s input on two pending cases, Hawai'i Wildlife Fund, et al., v. County of Maui and Upstate Forever, et al., v. Kinder Morgan Energy Partners where appellate courts have imposed CWA liability for such pollution -- setting precedents that industry groups and others say greatly expanded the law’s scope since it does not protect groundwater quality.

While observers expect the Trump administration to side with industry and oppose CWA-groundwater limits, how it will approach the issue remains unclear. Any major change in its position could also be procedurally fraught since EPA in May took public comments on potentially “clarifying” prior administrations’ statements on the subject that generally backed liability, yet has not taken any further steps to craft guidance or a rule based on that input.

However, it is uncertain whether DOJ will be able to file the brief on time, since it is subject to the same loss of funding that has shuttered EPA. Most of the department is considered “essential” and is continuing to operate during the shutdown but attorneys working on civil cases are being furloughed, which has led to widespread delays in environmental and other litigation.

Congress

The 116th Congress begins on Jan. 3, opening a new period of divided government with Republicans maintaining their majority in the Senate while Democrats assume control of the House. Although lawmakers’ first priority will be resolving the partial government shutdown now affecting EPA and several other agencies, Democrats have signaled that their long-term plans include an oversight-heavy environmental agenda with a significant focus on climate.

OCS Air Standards

Comments are due Jan. 2 on EPA’s Dec. 3 proposal that would revise federal air emissions standards for offshore areas in the outer continental shelf (OCS) in order to align with new state-level air rules enacted by Delaware. Under the federal Clean Air Act, OCS emitters must match state policies for each offshore region’s corresponding onshore area, including regular updates to keep the standards current.

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