Congress Targets CSAPR, Stream Protection Rule, and Methane Rule with CRA

Posted on February 7, 2017 by Katherine O'Konski

UPDATED 03.02.2017 to reflect that H.J. Res. 38 became Pub. L. 115-5.

Congress took action last week toward repealing the Cross-State Air Pollution Rule Update (CSAPR Update), the Stream Protection Rule, and the Methane and Waste Protection Rule, all using the Congressional Review Act (CRA).  As we previously reported, the CRA allows Congress to pass joint resolutions for disapproval of certain final agency rules by a simple majority vote in both chambers.  On Friday, February 3, 2017, Senator Pat Toomey (R-PA) introduced a CRA resolution that would repeal EPA’s CSAPR Update.  The Update sets new summer-time nitrogen oxide emissions budgets for 22 eastern states, and is also the subject of an appeal in the D.C. Circuit.  S.J. Res. 21 has been referred to the Senate Committee on Environment and Public Works.

In addition, both the House and Senate voted to repeal the Stream Protection Rule, 81 Fed. Reg. 93,066, issued by the Department of the Interior in December 2016 and updating regulations for surface and underground mining operations relating to the water quality of nearby streams.  H.J. Res. 38, introduced by Representative Bill Johnson (R-OH), passed in the House on a vote of 228 to 194, and in the Senate by a vote of 54 to 45.  The President is expected to sign the resolution into law.  The resolution became Public Law 115-5 on February 16, 2017.

The House also passed a joint resolution late last week to repeal the Methane and Waste Prevention Rule, 81 Fed. Reg. 83,008, issued by the Bureau of Land Management in November 2016.  The rule requires oil and gas producers to limit flaring and venting at wells on public and tribal lands. (Flaring refers to the practice of disposing of gas by burning it off at production sites or processing plants; venting refers to releasing gas directly into the atmosphere.)  Representative Rob Bishop (R-UT) introduced H.J. Res. 36, and it passed with a vote of 221 to 191.  The resolution has not yet been scheduled for a vote in the Senate.

Posted in Blog Posts | Tagged , | Comments Off on Congress Targets CSAPR, Stream Protection Rule, and Methane Rule with CRA

And Then There Were Two

Posted on February 2, 2017 by Jessica Bell

UPDATED 02.03.2017 FERC-issued Order Delegating Further Authority to Staff in Absence of Quorum is available here.

Tomorrow, February 3, 2017, will be Norman Bay’s last day on the Federal Energy Regulatory Commission.  Commissioner Bay has served since August 4, 2014, and was Chairman from April 15, 2015, to January 23, 2017.  In his letter resigning his appointment, he details accomplishments within the agency, and with regard to markets, reliability, and infrastructure, closing by noting that FERC’s “work touches the life of every single American, 24/7, 365 days out of the year.”

Commissioner Bay’s departure leaves FERC with only two members: Acting Chairman Cheryl LaFleur and Commissioner Colette Honorable.  (Previous departures from the five-member Commission included Commissioner Tony Clark on September 30, 2016, and Commissioner Philip Moeller on October 30, 2015.)  Without a quorum of three commissioners, there is some uncertainty about what will happen to filings pending or that may be filed before at least one vacancy can be filled by the President with the advice and consent of the Senate.

In a recent interview with FERC’s Open Access podcast (transcript), Acting Chairman LaFleur discussed the lack of quorum, echoing her earlier statement on this issue.  She noted that certain staff activities will continue during a period of no quorum and that “five times as many orders are issued in a year by staff than by the commissioners.”  FERC has a delegation of authority from 1993 that gives staff certain authorities, including suspending rate schedules under the Federal Power Act and granting requests for rehearing for further consideration (to avoid such requests being denied without a consideration of the merits).

Acting Chairman LaFleur also mentioned the White House’s announced regulatory freeze, noting that previously-set comment deadlines on FERC issuances will not change.  FERC also issued a Statement on Regulatory Freeze Memorandum on January 27, 2017.)  Although currently “well-staffed,” she said that the hiring freeze does apply to FERC but that some positions may be filled under the exception for work of significance to national security.  And Acting Chairman LaFleur has been in this role before, serving as Acting Chairman from November 25, 2013 to July 30, 2014 (and Chairman July 30, 2014 to April 14, 2015).

Posted in Blog Posts | Tagged | Comments Off on And Then There Were Two

Second Series of CPP Litigation Commences

Posted on January 31, 2017 by Anjali Patel

While we await a decision in West Virginia v. EPA, the D.C. Circuit has been handed a new set of CPP challenges to address: petitions seeking review of EPA’s January 17, 2017 denial of petitions for reconsideration and requests for administrative stay of the CPP.  To date, eight petitions have been filed and consolidated under the lead case, State of North Dakota v. EPA, No. 17-1014.  Docketing statements and statements of issues for the filed petitions are due starting February 24, 2017.

Parties seeking review have until March 20, 2017 to file a petition.  As such, the list of petitioners may grow longer in the weeks ahead.  Similar to the West Virginia line of cases, states and local governments will be found on both sides of the litigation.  Seventeen states, the District of Columbia, and five local governments already moved to intervene in support of EPA.

A full list of parties is provided below:

Petitions for Review of EPA’s Denial of Reconsideration:

Party(ies) Case No.
(LEAD CASE) State of North Dakota 17-1014
Murray Energy Corporation 17-1015
Utility Air Regulatory Group and the American Public Power Association 17-1018 
LG&E and KU Energy LLC  17-1019 
National Rural Electric Cooperative Association  17-1020 
States of West Virginia, Texas, Alabama, Arkansas, Georgia, Indiana, Kansas, Louisiana, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming, and the State of Arizona Corporation Commission, the State of Mississippi Public Service Commission, and the State of Mississippi Department of Environmental Quality   17-1022
National Association of Home Builders  17-1023
Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company   17-1031

Movant-Intervenors in Support of Respondent EPA:
Broward County, Florida
City of Boulder, Chicago
City of New York, New York
City of Philadelphia, Pennsylvania
City of South Miami, Florida
Commonwealth of Massachusetts
Commonwealths of Virginia
District of Columbia
State of California
State of Connecticut
State of Delaware
State of Hawaii
State of Illinois
State of Iowa
State of Maine
State of Maryland
State of Minnesota
State of New Mexico
State of New York
State of Oregon
State of Rhode Island
State of Vermont
State of Washington

Posted in Blog Posts | Tagged , , , | Comments Off on Second Series of CPP Litigation Commences

White House and Senate Democrats Turn Their Attention to Infrastructure

Posted on January 26, 2017 by Jeff Bayne

Earlier this week, both the new Trump administration and Senate Democrats offered some insight into their visions on how to best go about revitalizing U.S. infrastructure.  On January 24, 2017, the White House put out an Executive Order Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects.  Under this order, the Chairman of the White House Council on Environmental Quality (CEQ), who has yet to be nominated, is to determine whether particular projects that require federal review and approval qualify as “high priority.”  The Chairman will make this determination within 30 days after a request from either a Governor or the head of an executive department or agency, or on the Chairman’s own initiative.  The Executive Order specifically mentions improvements to the electric grid as an example of projects that are high priority.

Under the Executive Order, once a project is designated as high priority, the Chairman of the CEQ is to coordinate with the heads of relevant agencies to establish expedited procedures and deadlines for environmental reviews and approvals.  However, such procedures and deadlines must still be consistent with applicable law.  The Executive Order also provides that if agencies fail to meet these deadlines, they must provide a written explanation to the Chairman.

On the same day, Democrats offered their own approach to improving U.S. infrastructure, releasing A Blueprint to Rebuild America’s Infrastructure: Creating Over 15 Million New Jobs.  This Blueprint outlines a $1 trillion federal investment.  Ten percent of this, $100 billion, would be directed to “21st Century Energy Infrastructure.”  This money would be used for investing in transmission and distribution upgrades as well as consolidating and reforming existing tax incentives for renewable energy.

While Republicans control both the Senate and the House of Representatives, infrastructure could be an issue to watch going forward given the attention it is receiving by both parties and by both the legislative and executive branches.

Posted in Blog Posts | Tagged , , , | Comments Off on White House and Senate Democrats Turn Their Attention to Infrastructure

Northeast States Move to Intervene in Wisconsin v. EPA

Posted on January 24, 2017 by Katherine O'Konski

Last week, New York, Maryland, New Hampshire, Rhode Island, Vermont, and Massachusetts filed a joint motion with the D.C. Circuit, seeking to intervene in Wisconsin v. EPA and requesting prompt implementation of the EPA’s Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update). The states’ joint motion is the latest filing in litigation challenging EPA’s September 2016 CSAPR Update, which sets new summer-time nitrogen oxide (NOx) emissions budgets for 22 eastern states.

Since the Update was published in the Federal Register, states, industry groups, and environmental groups have filed sixteen petitions for review which have since been consolidated.  Wisconsin, the named petitioner in the lead case, filed a non-binding statement of issues on December 29, 2016, arguing that EPA: (1) made unjustified assumptions in modeling ozone levels, (2) failed to properly account for ozone contributions emanating from other countries, (3) violated the Good Neighbor Provision by applying the same treatment to maintenance areas as non-attainment areas, (4) failed to provide adequate relief for downwind states that can’t comply with National Ambient Air Quality Standards (NAAQS) due to ozone generated outside their borders, and (5) impermissibly established a baseline for good neighbor determinations in Western States.

The Northeast State intervenors argue that they have “a direct and substantial interest” in upholding the CSAPR Update.  They allege that their states have been unable to meet ozone NAAQS despite imposing air quality standards more stringent than those required by federal law.  Those initiatives have been insufficient in large part, they argue, because of pollution from upwind sources.  The states contend that the CSAPR Update will significantly improve air quality, and materially assist their efforts to comply with the “health-protecting NAAQS.”  Any decision invalidating the rule, they conclude, would deny them the upwind pollution reductions needed to assist in meeting their legal obligations under the Clean Air Act.

The American Lung Association, Appalachian Mountain Club, Environmental Defense Fund, and Sierra Club also filed a joint motion to intervene on December 23, 2016, citing a reduction in ambient ozone concentrations as a “major human health imperative.” They argue that weakening or vacating the CSAPR Update would threaten the health of the organizations’ members, as well as diminish their use and enjoyment of their property and natural resources.

A full list of parties is provided below.

Petitions for Review of CSPAR Update:

Party(ies) Case No.
(LEAD CASE)  States of Wisconsin, Alabama, Arkansas, Ohio, and Wyoming  16-1406
State of Texas, Texas Commission on Environmental Quality 16-1428
Murray Energy Corporation 16-1429
Western Farmers Electric Cooperative 16-1432 
Utility Air Regulatory Group* 16-1435
Midwest Ozone Group 16-1436
Indiana Energy Association, Indiana Utility Group 16-1437
City of Ames, Iowa 16-1438
Luminant Generation Company, LLC; Big Brown Power Company, LLC; Luminant Mining Company, LLC; La Frontera Holdings, LLC; Oak Grove Management Company, LLC; Sandow Power Company, LLC 16-1439
 Mississippi Power Company 16-1440
The Ohio Utility Group; AEP Generation Resources Inc.; Buckeye Power, Inc.; The Dayton Power and Light Company; Duke Energy Ohio, Inc.; Dynergy Commercial Asset Management, LLC; First Energy Solutions; Ohio Valley Electric Corporation 16-1441 
Wisconsin Paper Council, Wisconsin Manufacturers and Commerce, Wisconsin Industrial Energy Group, Wisconsin Cast Metals Association 16-1442 
Sierra Club, Appalachian Mountain Club 16-1443
Oklahoma Gas and Electric Company 16-1444 
Prairie State Generating Company, LLC 16-1445
State of Delaware Department of Natural Resources & Environmental Control 16-1448

Intervenors in Support of Petitioners in 16-1406 et al.:**
Murray Energy Corporation

Intervenors in Support of Respondent-EPA in 16-1406 et al.:
American Lung Association
Appalachian Mountain Club
Environmental Defense Fund
Sierra Club

Movant-Intervenors in Support of Respondent-EPA in 16-1406 et al.:
Commonwealth of Massachusetts***
Environmental Committee of the Florida Electric Power Coordinating Group, Inc.
State of Maryland***
State of New Hampshire***
State of New York***
State of Rhode Island***
State of Vermont***

* Utility Air Regulatory Group also moved to intervene in support of respondent in Case No. 16-1443 (Sierra Club v. EPA) and No. 16-1448 (Del. Dep’t of Nat. Res. & Envtl. Control v. EPA).  They also filed a separate petition for review of EPA’s final rule providing notice of the availability of data on NOX allowance obligations in Case No. 16-1410.  That case has been consolidated with the Wisconsin v. EPA proceedings in docket 16-1406.
** Cedar Falls Utilities has moved to intervene pending a determination EPA’s motion to dismiss or transfer Cedar Falls Utilities’ Eighth Circuit CSAPR Update Petition for Review.
*** Excluding Case No. 16-1443 (Sierra Club v. EPA) or No. 16-1448 (Del. Dep’t of Nat. Res. & Envtl. Control v. EPA).

Posted in Blog Posts | Tagged , , , , | Comments Off on Northeast States Move to Intervene in Wisconsin v. EPA