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

In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”).  The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan.  The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem. Read More »

Share | Email| Comments|  Topics: Air, Class Actions, Emissions, Hazardous Air Pollutants, Medical Monitoring, Michigan, Negligence, Nuisance, Statute of Limitations, Tolling, Toxic Torts

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 »

Share | Email| Comments|  Topics: Air, Arranger Liability, Bona Fide Prospective Purchaser, California, CERCLA, Clean Air Act, Contamination, Decisions of Note, Emissions, Hazardous Air Pollutants, Ninth Circuit, RCRA, Superfund

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