In the wake of the Supreme Court’s decision in Loper Bright Enters. v. Raimondo, 244 S.Ct. 2244 (2024), the general breadth and scope of agency decision-making has been called into question. In its recent decision, Huntsman Petrochemical LLC v. EPA, No. 23-1045, 2024 WL 3763355 (D.C. Cir. Aug. 13, 2024), the D.C. Circuit has made it clear that where statutory interpretation is not implicated, the Court will continue to afford EPA’s conclusions involving technical expertise a significant degree of deference. While neither the parties nor the Court attempted to address or reference Loper Bright, the Court articulated a clear standard applicable to agency actions involving statistical and modeling analyses: the Court will examine each step of an agency’s analysis to satisfy themselves that the agency has not “departed from a rational course.” Only where a statistical model “bears no rational relationship to the characteristics of data to which it was applied” will agency action be deemed arbitrary and capricious. Accordingly, regulated entities should be aware that the concept of deference lives on when challenging agency decision-making, even in the wake of the fall of Chevron Deference. Read More »

Share | Email| Comments|  Topics: Air, Chevron Deference, Clean Air Act, D.C. Circuit, Emissions, EPA, HAPs, Hazardous Air Pollutants, Rulemaking

On September 14, 2023, in Conservation Law Foundation v. Academy Bus, a Massachusetts District Court held that the members of the Conservation Law Foundation (the “Foundation”) lacked standing to challenge the idling of buses under the Clean Air Act (“CAA”).  Conservation Law Found. v. Acad. Express, LLC., No. 20-10032-WGY, 2023 WL 5984517, at *1 (D. Mass. Sept. 14, 2023). Specifically, the court held that simply breathing in polluted air, without any concrete injury that is fairly traceable to the defendant, is not sufficient to prove an actual injury under the CAA. Read More »

Share | Email| Comments|  Topics: Air, Citizens Suit, Clean Air Act, Emissions, HAPs, Hazardous Air Pollutants, Odors, Standing

On July 25, 2023, a Third Circuit panel rejected an environmental group’s challenge of federally approved changes to Pennsylvania’s State Implementation Plan (“SIP”),  holding that the Environmental Protection Agency (“EPA”) emissions-based analysis did not violate the Clean Air Act (“CAA”). Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2023 WL 471884, at *6 (3d Cir. 2023). The panel’s reasoning focused on a close statutory reading of §7410 of the CAA, which prevents EPA from approving any SIP revision that would “interfere with any applicable requirement for attainment and reasonable further progress” in reaching the National Ambient Air Quality Standards (“NAAQS”). Id. at *4. NAAQS are air quality benchmarks that each state must work toward by reducing their air pollution levels. Id. at *1. Ultimately, the Third Circuit held that Pennsylvania’s revisions did not interfere with NAAQS attainment because Pennsylvania reasonably concluded that emissions would likely decrease under the source specific requirements imposed by the revised plan. Id. at *4. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Clean Air Act, Climate Change, Greenhouse Gas, HAPs, Hazardous Air Pollutants, Legislation, Pennsylvania, Rulemaking, Third Circuit

EPA’s Clean Air Act (“CAA”) rulemakings directed at power plants are often the target of regulatory challenges in federal court.  EPA’s latest rulemaking regulating Hazardous Air Pollutant (“HAP”) emissions from coal- and oil-fired electric utility steam generating units (“EGUs”) is unlikely to be an exception. 88 Fed. Reg. 13956 (Mar. 6, 2023).  In the now final rule, EPA has revoked an earlier action taken in 2020, in which the agency declined to regulate HAP emissions from EGUs after comparing the costs of compliance relative to the benefits of regulation, relying at the time on the Supreme Court’s decision in Michigan v. EPA, 576 U.S. 743 (2015).  Id. at 13957; see also 85 Fed. Reg. 31286. Now, just three years later under a new administration, the agency has backtracked, finding that it is appropriate and necessary to regulate HAP emissions from EGUs based on new data regarding the costs and benefits of regulating HAP emissions.  EPA claims that its latest decision is actually more in line with the statutory factors identified in Michigan for determining whether it is “appropriate and necessary” to regulate HAP emissions from EGUs under the CAA. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, EPA, HAPs, Hazardous Air Pollutants, Rulemaking

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit published two decisions in cases involving environmental groups’ challenges to EPA’s efforts to regulate certain classes of hazardous air pollutants (“HAPs”).  Both cases concerned Section 112(c)(6) of the Clean Air Act, a provision enacted by Congress in 1990 that requires EPA to (1) complete a list of sources of seven specified HAPs that accounts for at least ninety percent of the total emissions of each of the seven HAPs and (2) subject these listed sources to emissions standards.  42 U.S.C. § 7412(c)(6).  Section 112(c)(6) gives EPA a choice among two emission standards:  (1) a stringent standard known as “maximum achievable control technology” (“MACT”) or (2) a standard based on health thresholds.  See § 112(c)(6), (d)(2) and (d)(4).  The cases decided last Friday highlight both procedural and substantive aspects of regulating air pollution. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Air, Clean Air Act, D.C. Circuit, Decisions of Note, HAPs, Hazardous Air Pollutants, Mercury, Rulemaking