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  1. Supreme Court Limits EPA’s GHG Permitting Authority and Creates Questions Regarding Implementation

    Monday, June 30, 2014 3:24 pm by , , and

    On Monday, June 23, the U.S. Supreme Court issued its long awaited decision in UARG v. EPA, the case that questioned EPA’s authority to require stationary sources to obtain Prevention of Significant Deterioration (PSD) and Title V air permits for greenhouse gases (GHGs).  Specifically, the Court considered:  (1) whether a stationary source can be required to obtain a PSD or Title V air permit based solely on its potential to emit GHGs and (2) whether sources that have to obtain PSD and Title V permits based on their potential to emit traditional criteria pollutants (so called “anyway sources”) must also obtain a permit limit based on the Best Available Control Technology (BACT) for controlling GHG emissions.  Ultimately, the Court held that GHG emissions alone cannot trigger an obligation to obtain a PSD or Title V permit, but that EPA can require a source to have a BACT limit for GHGs in its PSD permit if the source is required to obtain a PSD permit for any other pollutant. (more…)


  2. EPA Must Uniformly Apply Air Aggregation Requirements

    Tuesday, June 3, 2014 8:30 am by , and

    EPA suffered a major loss on May 30 when the D.C. Circuit refused to uphold EPA’s attempt to narrow the ruling in the Summit aggregation case to only the states in the 6th Cir.  Reversing more than 20 years of EPA practice, the Summit case directed EPA to refrain from using interdependency or the functional interrelatedness of various sources when making a determination regarding whether to aggregate the emissions from those sources for NSR and Title V permitting purposes. 

    In December 2012 after the Summit decision was final, EPA issued a memo that said the Agency would only apply the Sixth Circuit’s Summit decision in the states of Kentucky, Tennessee, Ohio, and Michigan.  The memo was challenged by an industry trade association, the National Environmental Development Association (NEDA).  (more…)


  3. Spill Prevention under the Proposed Waters of the United States Rule

    Friday, April 4, 2014 8:00 am by and

    We’ve blogged about the scope of EPA’s proposed Waters of the United States rule and whether it provides any additional clarity to the current regulatory scheme.  With this post, we’ll start to outline some direct potential impacts on different segments of industry.  Today, we briefly examine what an expanded regulatory scope of waters could mean for industries required to comply with the Spill Prevention, Control, and Countermeasure (SPCC) Rule under the Oil Pollution Act and the Clean Water Act. (more…)


  4. DOT’s New NEPA Categorical Exclusion May Actually Speed Project Delivery

    Friday, January 17, 2014 10:52 am by

    Spurred on by Congress, on Monday, the Federal Highway and Transit Administrations adopted a categorical exclusion which may spare some projects a detailed review under the National Environmental Policy Act.  Specifically, projects that receive less than $5,000,000 in federal funding will be presumed not to have to undertake any NEPA review at all.

    The fact that there would be some type of CatEx along this line was never in doubt – in July 2012, Congress included a provision in Section 1317 of the highway bill (called “MAP-21”) specifically ordering DOT to (1) designate a CatEx for any project that receives less than $5 million in federal funding and (2) promulgate a rule to carry out the CatEx.  The question was how DOT would implement this mandate:  Would any project whatsoever that received less than $5 million be excluded, even if DOT had other major decisions to make on the project – decisions that would normally require NEPA review? (more…)


  5. EPA Amends Tank Requirements in Oil & Gas NSPS

    Wednesday, August 14, 2013 11:07 am by

    On August 5, 2013, EPA released a prepublication copy of amendments to the oil and gas new source performance standards, 40 C.F.R. Part 60 (“the oil and gas NSPS”). The amendments primarily modify the requirements pertaining to volatile organic compound (“VOC”) emissions from storage tanks. EPA modified these requirements to respond to issues raised in petitions for reconsideration of the 2012 oil and gas NSPS, published in 77 Fed. Reg. 49,490 (Aug. 16, 2012). Interested parties may challenge these new requirements by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of publication of the rule in the Federal Register.

    Affected Tanks

    The amendments clarify that the oil and gas NSPS applies to vessels at affected facilities – meaning those vessels that hold crude oil, condensate, hydrocarbon intermediates or produced water and that have a potential to emit (“PTE”) emissions of 6 tons per year or more of VOCs. Only tanks of a certain age must comply with the oil and gas NSPS. (more…)


  6. EPA Issues Final 2013 Renewable Fuels Standard

    Wednesday, August 7, 2013 4:39 pm by

    On August 6, 2013, EPA issued a prepublication copy of the final rule establishing the 2013 annual percentage standards for the Renewable Fuels Standard (RFS) program for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel.  Under the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, EPA must promulgate regulations to ensure that an increasing amount of the transportation fuel sold in the U.S. contains renewable fuel. 

    To achieve this goal, EPA is required to annually set the renewable fuel standards for the following year by no later than November 30.  42 U.S.C. § 7545(o)(3)(B).  EPA did not meet this deadline in 2012 and instead published the notice of proposed rulemaking (NPR) in the Federal Register on February 7, 2013.  See 78 Fed. Reg. 9,282 (Feb. 7, 2013).  Despite missing the November 30, 2012 deadline, EPA claims in this final rule that the agency still has authority to issue a 2013 standard because the Clean Air Act does not specify a consequence for missing the deadline.  The United States Court of Appeals for the District of Columbia has previously concurred with this position.  See NPRM v. EPA, 630 F.3d 145, 152-58 (2010). (more…)


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