EPA Has Much to Reconsider on Power Plant Emissions
Pursuant to President Trump’s March 28 “Executive Order on Promoting Energy Independence and Economic Growth,” the EPA has sought to delay and review the implementation of Obama-era environmental regulations at a feverish pace. The executive order (a summary of which may be found here) required executive agencies to review existing regulations and policies that may burden the development and use of domestic energy and specifically required the EPA to review several key Obama-era regulations, including the Clean Power Plan. Accordingly, the EPA has asked courts to suspend the pending litigation for several environmental regulations while the new administration reviews the rules. Below is a description of the affected rules and the EPA’s actions to delay their effect.
Mercury Air Toxics Standards for Power Plants
On April 27, the D.C. Circuit granted the EPA’s motion for a 90-day stay in the litigation challenging the EPA’s supplemental findings for its Mercury Air Toxics Standards (“MATS”) for power plants while the new administration reviews the MATS rule. MATS set emissions limits for toxic air pollutants such as mercury, arsenic and other heavy metals released by coal fired power plants. The EPA was required by the Supreme Court in Michigan v. EPA, 135 S. Ct. 2699 (2015), to reevaluate the MATS rule and determine if the rule was still warranted after considering the costs to the industry. The Obama-Era EPA concluded in its supplemental finding that the rule was still appropriate and necessary despite the potential costs. However, many power plants have already taken steps to comply with the MATS rule. Accordingly, it is unclear what impact the EPA’s review will have on power plants moving forward.
Startup, Shutdown and Malfunction State Implementation Plan Call
On April 24, the D.C. Circuit granted the EPA’s request for a 90-day stay in the case challenging the EPA’s direction to 36 states to correct their state implementation plans (“SIPs”) by removing exemptions from emissions limits during periods of startup, shutdown and malfunction. Industry organizations and states initially challenged the rule, arguing that there was no statutory or regulatory authority for it and that it was federal overreach into authority granted to the states by the Clean Air Act. After the change in administrations, the Texas Commission on Environmental Quality petitioned the EPA to reconsider the rule. In its motion to the court, the EPA explained that the administration needs sufficient time to review the petition and the rule as a whole, including questions regarding the appropriate roles of states and the EPA under the Clean Air Act.
Nationwide Ambient Air Quality Standard (“NAAQS”) for Ozone
On April 11, the D.C. Circuit granted the EPA’s motion to stay challenges to the 2015 ozone NAAQS, which set a more stringent standard for ozone nationwide. In 2015, the EPA, which is required to review the NAAQS every five years, lowered the ozone NAAQS from 75 parts per billion (ppb) to 70 ppb. Industry groups and states challenged the rule as too restrictive, while environmental groups challenged it as not restrictive enough. In its motion, the EPA pointed to the Obama administration’s request to hold the 2008 ozone NAAQS in abeyance as the then new administration sought to review the ozone NAAQS promulgated under the Bush administration.
Clean Power Plan
In a serious blow to the Obama administration’s flagship environmental regulation, the D.C. Circuit granted the EPA’s motions to stay two cases challenging the Clean Power Plan. The EPA’s motions came swiftly after President Trump’s executive order, which specifically required the EPA to review the Clean Power Plan and revoke, revise or rescind the rule if it is inconsistent with the executive order. The court’s order stays for 60 days while the new administration reviews the rule. Additionally, the court asked the parties to file briefs on whether the rules should be remanded to the EPA.
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