This Blog Post was authored by Brielle Brown, a summer associate.  Originally published on July 7, 2021, it has been updated to reflect that after a rehearing, the decision was affirmed on July 20, 2021.

A three-judge panel of the Third Circuit held on June 21, 2021, that air emission exceedances governed by a state air permit and duly reported to state or local authorities pursuant to the permit need not be reported again to the United States Environmental Protection Agency (“EPA”) pursuant to the Section 103 reporting requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Clean Air Council v. U.S. Steel Corp., 2 F.4^th 112 (3d Cir. 2021); 42 U.S.C. § 9603. The decision was reheard and affirmed on July 20, 2021. Clean Air Council v. U.S. Steel Corp., No. 20-2215, -- F.4^th --, 2021 WL 3045927 (3d Cir., July 20, 2021). The court’s reasoning came down to an interpretation of CERCLA that the phrase “subject to” was intended to mean “governed or affected by” rather than “obedient to.” Id. at *3–4. Thus, air emissions that violate relevant Clean Air Act permits are nevertheless “subject to” that permit and therefore exempt from CERCLA’s reporting requirement. Id. Read More »

Share | Email| Comments|  Topics: Air, CERCLA, Chevron Deference, Clean Air Act, Emissions, Pennsylvania, Permits, Superfund, Third Circuit

This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Air, Citizen Suit, Clean Air Act, EHB, Federal Energy Regulatory Commission, FERC, Hearing Board, Natural Gas Act, Oil and Gas, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Preemption, Subject Matter Jurisdiction

Earlier this month, the Second Circuit affirmed the District Court for the Southern District of New York’s ruling that state common law claims against oil companies for costs resulting from climate change were either preempted by the Clean Air Act, or, in the case of foreign emissions, represented a non-justiciable political question. See City of New York v. Chevron Corp., 993 F.3d 81, 2021 WL 1216541 (2d Cir. 2021). The decision represents the first time an appellate court has had the opportunity to rule on the merits of the federal preemption defense raised by defendants. Although there are active lawsuits in other jurisdictions where plaintiffs have made substantially similar claims, decisions in the other active climate change suits thus far have been restricted to the issue of whether climate change suits brought in state court were properly removed to federal court. The decisions in those cases, therefore, have not addressed the merits of the federal preemption defense. (The Supreme Court is predicted to issue a ruling on the removal issue by the end of its term in June. See Mayor & City Council of Baltimore v. BP p.l.c., et al., 388 F. Supp. 3d 538, 548 (D. Md.), as amended (June 20, 2019), aff’d, 952 F.3d 452 (4th Cir.), cert. granted, 141 S. Ct. 222 (2020)). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, New York, Preemption, Second Circuit

On February 22, 2021, the D.C. Circuit granted the Environmental Protection Agency’s (“EPA”) motion to stay the vacatur of the Trump administration’s Clean Power Plan Repeal Rule until EPA conducts further rulemaking on the issue in the case of American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Feb. 22, 2021). This decision marks the latest action in the ongoing efforts by EPA and states to regulate greenhouse gas emissions; particularly in terms of carbon emissions from currently existing power plants. For additional background, please see previous MGKF blog on this topic here.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Clean Air Act, Climate Change, D.C. Circuit, Greenhouse Gas, Rulemaking

On January 19, 2021, the U.S. Court of Appeals for the D.C. Circuit vacated and remanded the Trump administration’s Affordable Clean Energy Rule (“ACE Rule”), which itself was a rollback of the Obama administration’s Clean Power Plan (“CPP”); once again reshaping the heart of American climate policy. American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Jan. 19, 2021). The CPP and ACE Rule both sought to regulate greenhouse gas (“GHG”) emissions from existing stationary sources but used highly divergent interpretations of the Clean Air Act (“CAA”) to do so. In making its ruling, the Court called the Trump Environmental Protection Agency’s interpretation of the CAA a “fundamental misconstruction” of the statute and provided a lengthy analysis of its findings. Id. at 16. The Court ultimately held that because the Environmental Protection Agency (“EPA”) based the ACE Rule “on an erroneous view of the law” (as opposed to having based the ACE Rule on a valid exercise of agency discretion), the court had no choice but to vacate the rule and remand it to the EPA for additional interpretation. Id. at 46. Because President Biden has described climate change as the “existential threat of our time,” the Biden EPA will likely use this opportunity to draft new rulemaking regarding the regulation of GHG emissions. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, D.C. Circuit, Greenhouse Gas, Rulemaking

Last week, the U.S. District Court for the Eastern District of Michigan refused to void a private settlement agreement entered between Sierra Club and DTE in the face of an objection by the United States that the settlement agreement interfered with a related consent decree and infringed on the government’s enforcement authority. United States v. DTE Energy Co., et al., No. 10-CV-13101 (E.D. Mich. Dec. 3, 2020). Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Air Act, Consent Decree, Emissions, Energy, Enforcement, Enforcement Action, Michigan

On August 22, 2019, the Seventh Circuit held that a plaintiff had sufficiently settled its cleanup liability under a settlement agreement with the U.S. Environmental Protection Agency (“EPA”) and the State of Indiana, which triggered the plaintiff’s right to bring a contribution claim, but that the statute of limitations on the plaintiff’s contribution claim had run. See Refined Metals Corp. v. NL Industries Inc., No. 1-17-cv-2565 (S.D. Ind. Aug. 22, 2019). Read More »

Share | Email| Comments|  Topics: CERCLA, Clean Air Act, Cleanup, Contribution, Cost Recovery, Indiana, RCRA, Remediation, Seventh Circuit, Statute of Limitations, Superfund

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On July 2, 2018, the State of Rhode Island (“RI”) filed suit against twenty-one oil and gas companies in an attempt to hold these organizations liable for climate change impacts RI has and will experience. The defendants (Chevron Corp., et al.) removed the case to federal court. On August 17, 2018, RI filed a motion to remand the case back to state court. On Monday, July 22, 2019, the United States District Court for the District of Rhode Island granted RI’s motion to remand. The remand order was stayed for sixty days for the court to consider whether a further stay pending appeal is warranted. Rhode Island v. Chevron Corp., 2019 WL 3282007 (D.R.I. July 22, 2019). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, Emissions, Federal Procedure, First Circuit, Nuisance, Oil and Gas, Preemption, Procedure, Subject Matter Jurisdiction

In August 2016, pursuant to § 7601 of the Clean Air Act, EPA issued its proposed Amendments to Regional Consistency Regulations (“Amended Regulations”), 40 C.F.R. §§ 56.3-56.5 (2017). The Amended Regulations state that, for purposes of implementing the Clean Air Act nationwide, EPA would only apply decisions of the U.S. Supreme Court and U.S. Court of Appeals for the D.C. Circuit uniformly:

Only decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to ‘nationally applicable regulations . . . or final action,’ as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly.

In National Environmental Development Association’s Clean Air Project v. EPA, No. 16-1344 (D.C. Cir. June 8, 2016), industry groups (“Petitioners”) challenged the Amended Regulations in the D.C. Circuit on the basis that EPA is charged with implementing the Clean Air Act uniformly nationwide and must establish mechanisms for resolving judicially-created inconsistencies, as opposed to ignoring them. In the decision rendered earlier this month, the D.C. Circuit denied the petitions for review and upheld the Amended Regulations. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, D.C. Circuit, Enforcement, EPA, Permits

Section 612 of the Clean Air Act (“CAA”) requires that manufacturers replace substances that have been determined to deplete the stratospheric ozone layer with alternatives that do not have the same effect. Section 612 further directs EPA to develop a list of safe substitutes and a list of prohibited substitutes. Hydrofluorocarbons (“HFCs”) were on the safe substitutes list until 2015, when EPA moved many of them to the prohibited substitutes list.  EPA asserted that this change required manufacturers who had been using HFCs to replace them with other substances from the safe list.  The 2015 Rule was challenged, and on August 8, 2017, in Mexichem Fluor Inc. et al., v. U.S. Environmental Protection Agency, No. 15-1328, the D.C. Circuit vacated the 2015 Rule to the extent that it required manufacturers to cease using HFCs as a replacement for ozone-depleting substances.  Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, D.C. Circuit, EPA, Rulemaking