Winston’s Environmental Law Update

The D.C. Circuit has stayed the EPA’s rollback of methane emissions standards for the oil and gas industry.

On August 13, 2020 the U.S. Environmental Protection Agency (EPA) issued two final rules, completing the rollback of Obama-era methane emissions regulations in the New Source Performance Standards (NSPS) for the Oil and Gas Industry. Issued in response to the March 2017 Executive Order on Promoting Energy Independence and Economic Growth, the EPA’s new rules relax methane gas emissions requirements applicable to various segments of the oil and gas industry. Methane, the primary component of natural gas, is a greenhouse gas.

Under Section 109(d) of the Clean Air Act, the EPA is required to conduct a comprehensive review of the National Ambient Air Quality Standards (NAAQS) every five years and revise or retain these standards as appropriate. On July 13, 2020, the EPA released a pre-publication draft of its proposal to retain the 2015 ozone NAAQS without revision. These standards are set at 70 parts per billion (ppb) for both the primary (health-based) and secondary (welfare-based) standards. The proposal comes as Chicago and other areas of the country are experiencing air quality alerts due to high levels of ozone in the ambient air with hot, sunny, summer weather.

In response to three separate decisions to remand by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), the EPA has issued a pre-publication draft of its amendments to the National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT). The proposed amendments revise 34 different emission limits for various subcategories of boilers and pollutants, 28 of which would become more stringent and six of which would become less stringent. Relying on the “co-benefits” of the rule in controlling ancillary emissions of particulate matter and sulfur dioxide, EPA estimates these amendments will cost the industry $21.5 million per year with estimated annual benefits of $95-$250 million. As we previously wrote, EPA has signaled its intent to move away from the practice of relying on co-benefits in rule development.

Under Section 211(v) of the Clean Air Act, EPA was required to complete “a study to determine whether the renewable fuel volumes required by [Section 211(o)] will adversely impact air quality as a result of changes in vehicle and engine emissions of air pollutants.” On May 29, 2020, EPA released its so-called anti-backsliding study, which evaluated two scenarios for calendar year 2016.

On May 13, 2020, a coalition of nine attorneys general, led by New York Attorney General Letitia James, filed a lawsuit challenging the U.S. Environmental Protection Agency’s policy for exercising civil enforcement discretion during the COVID-19 pandemic.

On April 20, 2020, the Supreme Court of the United States issued its opinion in Atlantic Richfield Co. v. Christian, et al. allowing Montana landowners to pursue state law tort claims for damages within an EPA-managed Superfund site, but requiring EPA approval of any remedial work beyond the originally selected remedy.

EPA’s Mercury and Air Toxics Standards (MATS), which regulates emissions of hazardous air pollutants (HAPs) from coal- and oil-fired electric utility steam generating units (EGUs), was promulgated in 2012. Underpinning the rule was EPA’s determination under § 112(n)(1)(A) of the Clean Air Act that it is appropriate and necessary to regulate HAP emissions from coal- and oil-fired EGUs. In making its appropriate and necessary determination, EPA did not consider costs, which spurred legal challenges.

On July 8, 2019, the U.S. Environmental Protection Agency (EPA) published a notice in the Federal Register finalizing three discrete rulemaking actions. First, EPA repealed the Clean Power Plan (CPP) promulgated by the Obama Administration on the grounds that the CPP exceeded EPA’s rulemaking authority.

There are a number of noteworthy environmental cases on its agenda as the Supreme Court heads into the oral arguments for the spring session.

In what has turned out to be a highly controversial move, on August 1, 2018 the Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) proposed to roll-back the Corporate Average Fuel Economy (CAFE) standards and carbon dioxide tailpipe emissions standards for vehicle model years 2021-2026, which were previously established during the Obama Administration, as no longer feasible or appropriate.

As part of the Trump Administration’s efforts to streamline regulatory permitting requirements for manufacturers and other facilities, the U.S. Environmental Protection Agency (EPA) has recently issued updated guidance clarifying construction permitting requirements under the Clean Air Act’s New Source Review (NSR) program.

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On May 25, 2018, Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a proposed rule titled “Review of the Primary National Ambient Air Quality Standards (NAAQS) for Sulfur Oxides.”

EPA’s audit policy has been in place since the mid-1990s and provides a process for regulated industry to disclose certain violations of environmental law discovered during an audit in exchange for various incentives, including penalty mitigation. On May 15, 2018, EPA announced a renewed emphasis on its audit policy as part of its 2018-2022 strategic plan.

On February 20, 2018, 236 mayors from 48 states and territories issued a letter to U.S. EPA Administrator Scott Pruitt opposing EPA’s proposed repeal of the Clean Power Plan.

On November 15, 2016, the U.S. Department of Interior (DOI) Bureau of Land Management (BLM) announced the final Methane and Waste Prevention Rule, which will reduce the release of natural gas into the atmosphere from oil and gas operations on public and Indian lands. 

Following the Supreme Court’s 2015 decision in Michigan v. EPA requiring EPA to consider costs before regulating utilities under Section 112 of the Clean Air Act, litigation regarding the several aspects of the Mercury and Air Toxics Standards (MATS) continues in the U.S. Court of Appeals for the D.C. Circuit.

On July 15, 2016, EPA issued final New Source Performance Standards for new, modified, and reconstructed municipal solid waste (MSW) landfills and issued revised guidelines to reduce emissions from existing MSW landfills. These rulemakings update regulations that were issued in 1996 and are part of President Obama’s Climate Action Plan.

On June 13, 2016, the Supreme Court of the United States denied an appeal from states and industry in Michigan v. EPA regarding the Mercury & Air Toxics Standards. 

On June 3, 2016, U.S. EPA finalized its long-awaited rule defining the scope of a “stationary source” in the oil and gas industry for purposes of New Source Review and Title V permitting.