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 »

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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 »

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UPDATE: 

This past Thursday, the U.S. Court of Appeals for the District of Columbia Circuit delayed for two weeks its mandate which required the U.S. Environmental Protection Agency to lift its 90-day stay on portions of its methane rule for new oil and gas infrastructure.  The Court issued the mandate after determining that the EPA lacked authority under the Clean Air Act to issue the stay on the Obama-era regulations as further discussed in the original blog post below.  The order delaying the mandate indicates that the Court is providing EPA with time to “determine whether to seek panel rehearing, rehearing en banc, or pursue other relief” with respect to the mandate.  Thus, the methane rule is again on hold for the next several weeks while EPA decides whether and how to challenge the Court’s lifting of the 90-day stay.     

ORIGINAL POST:

Last week, the U.S. Court of Appeals for the District of Columbia Circuit struck down a 90-day stay imposed by the U.S. Environmental Protection Agency on portions of its methane rule for new oil and gas infrastructure, finding the agency lacked authority under the Clean Air Act to issue the stay. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017).  The methane rule, which establishes “New Source Performance Standards” for fugitive emissions of methane and other pollutants by the oil and natural gas industries, was finalized in June 2016 by the Obama administration.  Notably, the Court’s 2-1 decision puts back into effect the June 3, 2017 deadline for regulated entities to conduct an initial monitoring survey to identify leaks from equipment. Read More »

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Last week, a federal court in the Central District of Illinois held the owner and operator of a coal-fired power plant liable for violations of the Clean Air Act for exceeding particulate matter emission thresholds in the plant’s state operating permit.  NRDC v. Ill. Power Res., LLC, No. 13-cv-1181, 2016 U.S. Dist. LEXIS 111976 (C.D. Ill. Aug. 23, 2016).  The court found that the plaintiffs—three environmental advocacy organizations who filed suit under the citizen suit provision of the CAA—had standing to sue the plant because certain of their individual members suffered injury-in-fact where emitted pollutants that “could cause harm” were present in the witnesses’ general geographic area and the witnesses’ pleasure was somehow diminished by the presence of the pollutants, even where the witnesses could not point to an objective effect of the alleged violation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Air Act, Emissions, Federal Procedure, Hazardous Air Pollutants, Illinois, Permits, Standing

Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9^th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9^th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

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Last week, the 10th Circuit Court of Appeals affirmed dismissal of a Sierra Club citizen suit against a coal-fired power plant for an alleged permitting violation of the Clean Air Act, finding that the Sierra Club’s claims were time-barred.  In the case, Sierra Club v. Okla. Gas & Elec. Co., No. 14-7065 (10^th Cir. March 8, 2016), the court held that the Sierra Club’s claims for civil penalties were statutorily time-barred because they were brought more than five years after the power plant began its unpermitted modification of a boiler, an action which the Sierra Club claims violated the Prevention of Significant Deterioration (PSD) program under the Clean Air Act.  The court also affirmed dismissal of the group’s claims for injunctive and declaratory relief because those legal claims were predicated on the same facts as the time-barred civil penalties.  The court’s interpretation of the statute of limitations as applied to the PSD program is consistent with a 2011 district court decision in the 3rd Circuit, United States v. EME Homer City Generation L.P., et al., which we reported on here. Read More »

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Yesterday in two parallel class action interlocutory appeals, the Sixth Circuit joined the Third Circuit in holding that the Clean Air Act does not preempt state common law tort claims related to air pollution.  The first case, Merrick v. Diageo Americas Supply, Inc., involved excess ethanol emissions from Johnny Walker and J&B brand whiskey distilleries located in Louisville, Kentucky that allegedly caused the growth of a specific type of mold on neighboring properties.  The proposed class of local property owners asserted claims for negligence, nuisance, trespass, and injunctive relief, relying on violations of a local ordinance that prohibited air pollution which caused “injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public.”  The second case, Little v. Louisville Gas & Electric Co., involved dust and coal ash emissions from a coal-fired power plant which effected local residents, and which were the subject of multiple notices of violation issued to the power company.  The class action claims in Little included claims for violations of the federal Clean Air Act and the Resource Conservation and Recovery Act, as well as state common law claims for nuisance, trespass, negligence, negligence per se, and gross negligence.  In both cases, United States District Court for the Western District of Kentucky allowed the common law claims to survive defendants’ motions to dismiss, ruling that the common law claims were not preempted by the federal Clean Air Act.   Read More »

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Last week, in the case of Maroz v. Arcelormittal Monessen LLC, 2015 U.S. Dist. LEXIS 140660 (W.D. Pa. Oct. 15, 2015), a judge of the Western District of Pennsylvania declined to dismiss a proposed class action in which residents living near ArcellorMittal’s coke plant in Monessen, Pennsylvania alleged that noxious odors and air particulates from the plant polluted their properties.  After allowing the residents to amend their original complaint, U.S. District Judge Arthur J. Schwab found that the residents adequately pled the state common law tort claims for private nuisance, negligence, and trespass, despite the judge’s acknowledgement that there was “not a large number of detailed facts” set forth in the amended complaint.   However, the Court did dismiss claims for public nuisance and punitive damages. Read More »

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An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Share | Email| Comments|  Topics: Air, Cases to Watch, CERCLA, Clean Air Act, Decisions of Note, Defense Costs, Electric, Emissions, Energy, Enforcement Action, EPA, Fifth Circuit, Indemnification, Insurance, Insurance Coverage, Louisiana, Remediation

Last summer we reported on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (3rd Cir. 2013), a Third Circuit decision which held that the Clean Air Act does not preempt state law claims for personal and property damage caused by air pollutants.  And in March, we noted, not unsurprisingly, that defendant GenOn Power had filed a Petition for Cert to the U.S. Supreme Court.  On June 2, that Petition was denied, which may have been the impetus for the Supreme Court of Iowa to release its decison in Freeman v. Grain Processing Corp., No. 13-0723 (June 13, 2014), holding that neither the Clean Air Act nor Iowa's analogous state act pre-empted similar state law claims.  The decision is a hefty one, providing a historical overview of the Clean Air Act and preemption law and an in-depth discussion leading to the Court's final determination.  Put this one aside for one evening when you're sitting in the recliner with a glass of wine at your side.   

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