Air Quality Committee Report

Judicial Developments

A. Title I - National Ambient Air Quality Standards (NAAQS), Federal Implementation Plans (FIPs) & State Implementation Plans (SIPs)

In West Virginia v. EPA, the Supreme Court held that the U.S. Environmental Protection Agency (EPA) lacked authority under Section 111(d) of the Clean Air Act (CAA) to enact the Clean Power Plan (CPP), which reduced carbon dioxide emissions from existing power plants by forcing a shift in power generation to low carbon technologies. Procedurally, the Court held that the state petitioners had Article III standing to challenge the underlying D.C. Circuit’s decision that reversed the Trump administration’s repeal and replacement of the CPP. The Court held that the D.C. Circuit’s stay of that part of its decision and the EPA’s expressed intention to not enforce the CPP involved issues of mootness, not standing. EPA’s voluntary cessation of enforcing the CPP did not establish that the case was moot.

On the merits, the Supreme Court cited a series of recent decisions where the Court held that administrative agencies had attempted to regulate far beyond congressionally delegated powers in matters of great political and economic significance, implicating constitutional separation of powers questions. In such extraordinary cases, an agency must point to “clear congressional authorization” for its regulation. Citing this “major questions” doctrine, the Court concluded that the CPP would have far-reaching impacts on the national electric system and the US economy. However, Section 111(d) uses vague language and is a long-extant, but rarely used, statute designed as a gap filler. Section 111(d) does not empower EPA to promulgate regulations that would transform the electric grid in a manner that Congress “conspicuously and repeatedly” rejected.

In Sierra Club v. EPA, the United States Court of Appeals for the D.C. Circuit held EPA has the discretion to make and publish a finding of nationwide scope or effect, the D.C. Circuit could not review the finding, and venue lies in the United States Court of Appeals for the Fifth Circuit. Sierra Club challenged EPA’s 2020 rules lifting two Texas metropolitan areas’ anti-backsliding requirements with now-revoked ozone NAAQS. Sierra Club maintained the 2020 rules are nationally applicable because EPA interpreted the CAA broadly and did not limit the anti-backsliding obligations to the Houston and Dallas areas. Sierra Club argued EPA’s rules amended the agency’s national implementation regulations. The D.C. Circuit rejected the arguments because the rules are locally or regionally applicable, and EPA never made or published a finding the 2020 rules were based on a determination of nationwide scope or effect. EPA had the discretion to make and publish a finding of nationwide scope or effect, so the circuit could not review the decision. Thus, venue lies in the Fifth Circuit, where Sierra Club filed a protective petition for review.

B. New Source Review, Prevention of Significant Deterioration, New Source Performance Standards & Title V Permitting

In Danskammer Energy LLC v. New York State Department of Environmental Conservation, the petitioner energy company challenged the New York State Department of Environmental Conservation’s (NYDEC) denial of a Title V air permit for a natural gas-fired power plant pursuant to section 7(2) of New York’s Climate Leadership and Community Protection Act (CLCPA). The court held that NYSDEC is authorized to deny an air permit based upon a finding that the applicant’s proposed emissions are inconsistent with or will interfere with the attainment of the statewide greenhouse gas limits established under the CLCPA. The court rejected arguments that NYSDEC violated the petitioner’s due process rights by implementing the CLCPA in a manner that is a de facto “rule” prohibiting gas-fired power plants in New York without first promulgating rules following APA rulemaking procedures. The court also held that the petitioner had failed to exhaust its administrative remedies.

In Boerne to Bergheim Coalition for Clean Environment v. Texas Commission on Environmental Quality, the Court of Appeals of Texas affirmed a trial court judgment upholding the Texas Commission on Environmental Quality’s (TCEQ) approval of a standard permit for a concrete batch plant with enhanced controls (CBPEC) located about 2,000 feet from a Montessori School. Section 382.05198 of the Texas Clean Air Act sets forth nineteen specific requirements that must be satisfied for a Standard Permit for CBPEC to be issued. For permits to construct a facility within 3,000 feet of a school, section 382.052 requires the TCEQ to “consider possible adverse short-term or long-term effects of air contaminants or nuisance odors from the facility on the individuals attending the school facilities.” Citizen group appellants maintained that section 382.052 applied to Standard Permits for CBPEC and that TCEQ failed to sufficiently consider impacts to the school as required by the statute.

Upholding TCEQ’s approval of the permit, the court found that application requirements in section 382.05198 addressed both short- and long-term impacts to nearby populations “in harmony with the mandate of Section 382.052.” While the court concluded that section 382.05198’s requirements sufficiently took impacts to the school into account, it did not render a blanket holding as to whether the requirements obviate TCEQ’s “continuing obligation” to consider a facility’s impacts on nearby schools.

In Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., a divided panel of the Fifth Circuit Court of Appeals upheld a district court judgment imposing civil penalties under the CAA. This long-running litigation, making its third appearance before the Fifth Circuit, was initiated in 2010 under the citizen suit provision of the CAA. The plaintiffs alleged that the defendant had self-reported thousands of violations of its Title V permit for the company’s massive Baytown complex near Houston, Texas. In a prior appeal, the Fifth Circuit concluded that the plaintiffs had established the injury-in-fact and redressability components of Article III standing, but that the district court had not made sufficient findings to demonstrate the plaintiffs’ alleged injuries were “fairly traceable” to the violations. Those injuries included: “s[eeing] flares, smoke, and haze coming from the complex; smell[ing] chemical odors; suffer[ing] from allergy-like or respiratory problems; fear[ing] for their health; refrain[ing] from outdoor activities; or mov[ing] away.” On remand, the district court found that the alleged injuries could not be fairly traced to a significant number of the alleged violations, but also concluded that the plaintiffs had satisfied that requirement for thousands of other violations. For the latter violations, the district court imposed civil penalties of $14.25 million.

On appeal, ExxonMobil raised new arguments against the Plaintiffs’ standing to sue, all of which were rejected under both the law of the case doctrine and on their merits. The court held that its prior approach to the injury-in-fact component of standing was not affected by the Supreme Court’s intervening decision in TransUnion LLC v. Ramirez. Similarly, the court rejected ExxonMobil’s challenge to the court’s prior ruling on traceability, concluding that decisions of the Supreme Court and other courts of appeals were fully consistent with the court’s approach. The court also upheld the district court’s finding on traceability. Finally, the court held that the district court did not abuse its discretion in imposing civil penalties, rejecting ExxonMobil’s challenges to the district court’s findings on statutory factors, including the economic benefits ExxonMobil gained by the violations, the duration of the violations, and the seriousness of the violations.

In Voigt v. EPA, the Eighth Circuit Court of Appeals denied a petition for review of EPA’s decision to renew a Title V operating permit issued by the North Dakota Department of Health (NDDOH) for a nearly coal-fired electric generating plant supplied by an adjacent coal-mine. The Voigts owned a ranch adjacent to the electric generating plant and had filed a petition with EPA contesting a permit proposed for the generating station. The Voigts claimed that the generating station exerted complete control over the mine through the terms of their sales agreement and had complete physical control over the conveyer belt running between the two facilities. Accordingly, the Voigts alleged the proposed permit did not properly account for emissions from the mine. EPA denied the Voigts’ petition on grounds that the Voigts failed to meet their burden to demonstrate that the generating station and mine were single source.

On appeal, the Eighth Circuit upheld the agency’s decision to deny the Voigts’ petition, finding that the Voigts had failed to demonstrate that the generating station and mine were a single source. The court deferred to EPA’s interpretation of the term “demonstrates” in CAA section 7661d(b)(2) as “includ[ing] an obligation to discuss the specific points in the issued permit or reasoning to which the Voigts objected." Though the Voigts had identified language in the permit they took issue with, the court found EPA reasonably concluded that Voigts failed to meet their burden by not providing “adequate references, legal analysis, or evidence in support of [their] general assertions.” The court further concluded that the Voigts failed to preserve the issue regarding the lack of notice and comment by failing to identify that as a basis for an objection in the 2020 permit.

In Rise St. James v. Louisiana Department of Environmental Quality, Petitioners appealed the Louisiana Department of Environmental Quality’s (LDEQ) decision issuing permits to plastics company, FG LA. The permits would allow the construction of a new chemical manufacturing complex. LDEQ issued a Prevention of Significant Deterioration (PSD) permit and issued 14 permits, authorized under CAA, for the 14 plants to operate in the proposed complex. Plaintiffs alleged the proposed complex would emit a large amount of cancerous air pollutants, harming the adjacent town of Welcome, which holds a ninety-nine percent minority population. The court agreed with Petitioners that LDEQ should have denied FG LA’s application and that LDEQ’s interpretation failed to comply with CAA’s public-health-based air-quality standards. Furthermore, the court agreed with Petitioners that LDEQ’s environmental justice analysis was arbitrary and capricious and did not comply with the agency’s public trustee duties. The court then held the environmental justice analysis was mandatory under a Louisiana Supreme Court decision. Accordingly, the court reversed LDEQ’s PSD permit and vacated all permits, remanding the matter in accordance with Louisiana law.

C. Title II - Mobile Sources & Fuels

In Utah Physicians for a Healthy Environment v. TAP Worldwide LLC, the District Court for the District of Utah held that the plaintiff environmental advocacy group could maintain an action against the defendant under the CAA’s citizen suit provision for alleged violation of section 203 of the CAA . Section 203 makes it unlawful for any person to remove or render inoperative a pollution control device on a motor vehicle or to sell any product that may be used to defeat or bypass such pollution controls. The court concluded that section 203 is properly viewed as an “emissions standard or limitation,” and as such, may be enforced under the terms of the citizen suit provision in section 304(a)(1). The court also held that the plaintiff organization had satisfied the requirements for associational standing, including the requirement that one or more of the association’s members satisfy the Article III requirements of injury-in-fact, traceability, and redressability. The association alleged that its members had experienced reduced enjoyment in a variety of activities. The court found: this allegation sufficient to establish injury; that the complaint adequately alleged that these injuries were fairly traceable to TAP Worldwide’s activities, including the sale and installation of aftermarket devices to defeat vehicle emissions controls; and that the injuries could be redressed by the injunctive relief requested by the plaintiffs.

In Producers of Renewables United for Integrity Truth & Transparency v. EPA, a coalition of companies in the biofuels industry challenged EPA actions granting Replacement Identification Numbers (RINs) to certain small refineries in Wyoming. EPA initially denied the three refineries’ hardship exemptions under the Renewable Fuel Standard (RFS) for the 2014 and 2015 compliance years. The Tenth Circuit Court of Appeals vacated and remanded those decisions. On remand, EPA granted the exemptions, but the remedy of “refunded” 2014 and 2015 RINs was now worthless, as that vintage of RINs had expired. EPA decided to “un-retire” the 2014 and 2015 RINs and return them to each refinery by exchanging the expired RINs on a one-for-one basis with 2018 RINs. The biofuels group challenged: (1) EPA’s process in formulating these specific exemption remedies; and (2) its authority to issue replacement RINs.

The Tenth Circuit found that the biofuels group lacked standing because it did not show that at least one of its members met the threshold causation and redressability requirements. The group argued the challenged agency actions “have reduced the need to purchase physical gallons of biofuel to meet the RFS” and “reduced RIN prices;” as such, its members “have lost sales, lost value for their product under previously entered contracts, lost customers, and, in some cases, have had to strand investments.” The Tenth Circuit concluded that even assuming the group’s assertions were true as a general matter, the group failed to adequately explain “how falling RIN prices or market volatility was caused by the EPA’s decision to unretire RINs for [these refineries].” Put another way, the court “agreed with the refineries” that the group “fail[ed] to identify any basis for attributing market-wide fluctuations in RIN prices to the limited number of replacement RINs EPA issued [here].” The court disagreed “that a judgment instructing [] EPA to claw back the replacement RINs” would relieve the members’ injuries, for similar reasons.

In Racing Enthusiasts and Suppliers Coalition v. EPA, the D.C. Circuit dismissed a petition for review of a 2016 EPA rule that, in part, addressed whether motor vehicles converted for use in racing are exempt from CAA prohibitions relating to tampering with emissions controls on motor vehicles. The petition challenged nine aspects of the 2016 rule, falling into three categories: (1) “cosmetic” amendments to a pre-existing rule exempting nonroad vehicles used in competitions from certain CAA requirements; (2) an updated definition of a motor vehicle; and (3) language from the final rule’s preamble disclaiming that a statement in the proposed rule was meant to change the law or policies relating to dedicated competition vehicles. The court held that the petitioning association lacked standing to challenge the first category of actions because those actions had no regulatory effect, and thus, did not affect the rights and responsibilities of the association’s members. Standing was also deemed lacking to challenge the revised definition of motor vehicle because the association had made only conclusory assertions that failed to demonstrate that any member of the association was adversely affected by the definition. Finally, the court held that EPA’s disclaimer in the final rule was not “final action” subject to judicial review under the CAA because it had no direct legal consequences.

In Suncor Energy (U.S.A.), Inc. v. EPA, Suncor challenged EPA’s denial of two of its refineries’ petitions for hardship relief under the RFS for the 2018 compliance year. Suncor owns and operates the East and West Refineries, located next to each other in Commerce City, Colorado. EPA concluded the refineries were ineligible for the exemption because their operations were sufficiently integrated that their throughputs should be aggregated, which put them over the 75,000-bpd threshold. In particular, EPA noted that Suncor’s East Refinery partially processes crude oil into gasoline blending components and intermediate distillate feedstocks that are ultimately converted into gasoline, CBOB [(conventional gasoline blendstock for oxygenate blending)], and ULSD [(ultra-low sulfur diesel)] in the West Refinery.”

The Tenth Circuit granted Suncor’s petition for review, vacated EPA’s decision, and remanded to the agency for further proceedings. Following a lengthy and inconclusive definitional analysis of “refinery,” as well as the terms “facility” and “produced” employed by the definition of refinery, the court noted that EPA’s failure to consider its definition of “facility” contained in the “Definitions” section of its RFS regulations was “not in accordance with law.” And though the Court recognized that “this reason alone would justify” reversal and remand, the Court then addressed whether EPA’s interpretation of “refinery” was arbitrary and capricious. In that respect, the Court concluded that the context of the agency’s interpretation meant that it was not entitled to Auer deference and “at best” was entitled only to limited Skidmore deference. Then, even applying limited deference, the court concluded that EPA’s decision lacked sufficient clarity. On remand, the court directed EPA to apply the ignored definition of “facility” or explain why that definition is not relevant. The court also instructed EPA to provide guidance on its analysis of the degree of integration between the refineries and to avoid considering Suncor’s management structure and public statements unless shown to be consistent with the statutory and regulatory definitions of “refinery.”

D. Procedural & Jurisdictional Issues

In State of Delaware v. BP America Inc., the U.S. District Court for the District of Delaware, on removal from Delaware Superior Court, held that state common law and statutory claims brought by the State of Delaware against numerous fossil fuel corporations seeking compensatory and punitive damages and penalties for defendants’ alleged misrepresentation of climate-related harms caused by fossil fuels belong in Delaware Superior Court and not federal court. The court granted plaintiff’s motion to remand, rejecting defendants’ arguments for removal and finding federal common law does not completely preempt state law claims, there were no necessary or substantial federal interests, federal officer removal jurisdiction under 28 U.S.C. § 1442 was not shown, and the Outer Continental Shelf Lands Act provided no basis for removal.

In Board of County Commissioners of Boulder County v. Suncor Energy Inc., the Tenth Circuit, on remand from the United States Supreme Court following the BP p.l.c. v. Mayor and City Council of Baltimore decision, held that none of the six grounds asserted by energy company defendants supported federal removal jurisdiction. The Tenth Circuit found that any control exercised by federal officers in issuing the energy companies’ fossil fuel leases was insufficient for federal officer removal jurisdiction under 28 U.S.C. § 1442(a). It also found no removal jurisdiction by way of the energy companies’ five separate arguments under 28 U.S.C. § 1441(a) and 28 U.S.C. § 1331, finding: (1) federal common law does not completely preempt state-law claims; (2) the federal CAA does not completely preempt state-law claims; (3) there were not necessary or substantial federal interests; (4) federal enclave jurisdiction did not apply; and (5) the Outer Continental Shelf Lands Act provided no basis for removal jurisdiction. Thus, the Tenth Circuit upheld the district court’s grant of the municipal plaintiffs’ motion for remand. The municipalities’ claims against the energy companies for damages related to climate change will proceed in Colorado state court.

In PennEnvironment, Inc. v. United States Steel Corp., plaintiff citizens groups filed a complaint in the U.S. District Court for the Western District of Pennsylvania alleging that defendant U.S. Steel had repeatedly violated the CAA, the Pennsylvania State Implementation Plan, and applicable CAA operating permits at three integrated steel production facilities near Pittsburgh. The groups alleged that following a fire at one facility, it operated for three months without key pollution controls. Plaintiff-Intervenor Allegheny County Health Department (ACHD) subsequently filed a complaint in intervention, alleging similar violations. The citizen group plaintiffs grouped their alleged violations under four claims—failure to operate pollution control equipment in violation of permit conditions; creation of air pollution in violation of permit conditions at one plant; violation of H2S limits at each of the three plants; and violation of SO2 limits at two plants—though each claim consisted of hundreds of individual alleged violations. ACHD grouped its alleged violations into one claim for each plant. Both sets of plaintiffs sought civil penalties and injunctive relief. All parties moved for partial summary judgment.

One key issue before the court was whether the citizens groups had proven standing. The groups sought “to establish standing through specified members who live[d] in different towns, who var[ied] in their proximity to various emissions sources, and who report[ed] an assortment of different injuries” they linked to the sources. The groups argued that they need only prove standing for each claim in their complaint, not each violation “packed into” each claim. The court disagreed, finding that “while it is not necessary for each Citizens Groups member to have standing to sue for every violation alleged, … some member [must] have standing to sue for each [alleged] violation,” though “separate proof of standing is not required for each violation” (emphasis in original). Applying this standard, the court found that “genuine disputes of material fact exist[ed] as to whether the [sic] members’ injuries [were] fairly traceable to [sic] U.S. Steel’s alleged permit violations.”

In County of San Mateo v. Chevron Corp., the Ninth Circuit, on remand from the United States Supreme Court following the BP p.l.c. v. Mayor and City Council of Baltimore decision, held that none of the seven grounds asserted by energy company defendants supported federal removal jurisdiction. The Ninth Circuit found: (1) there were not necessary or substantial federal interests; (2) the federal CAA does not completely preempt state-law claims; (3) federal enclave jurisdiction did not apply; (4) the Outer Continental Shelf Lands Act provided no basis for removal jurisdiction; (5) federal officer removal jurisdiction under 28 U.S.C. § 1442(a) was not shown; (6) the claims did not have a sufficiently close nexus with certain bankruptcy claims; and (7) maritime claims were not removable on the basis of admiralty jurisdiction alone. Thus, the Ninth Circuit upheld the district court’s grant of the county plaintiffs’ motion for remand. The energy company defendants have appealed the decision to the United States Supreme Court.

In Rhode Island v. Shell Oil Products Co., the First Circuit, on remand from the United States Supreme Court following the BP p.l.c. v. Mayor and City Council of Baltimore decision, held that none of the seven grounds asserted by energy company defendants supported federal removal jurisdiction. The First Circuit found (1) federal common law does not completely preempt state-law claims, (2) there were not necessary or substantial federal interests, (3) the federal Clean Air Act does not completely preempt state-law claims, (4) federal enclave jurisdiction did not apply, (5) the Outer Continental Shelf Lands Act provided no basis for removal jurisdiction, (6) nor did claims of admiralty jurisdiction, and (7) the claims did not have a sufficiently close nexus with certain bankruptcy claims. Thus, the First Circuit upheld the district court’s grant of the state of Rhode Island’s motion for remand. Rhode Island’s claims against the energy companies for damages related to climate change will proceed in Rhode Island state court.

In Chevron U.S.A. Inc. v. EPA, the D.C. Circuit dismissed Chevron’s petition for review after determining proper venue lies in the United States Court of Appeals for the Ninth Circuit. Chevron sought guidance from EPA on whether decommissioning of two oil platforms located offshore within 25 miles of Ventura County, California, made the oil platforms cease to qualify as regulated sources under the CAA. The EPA’s response letter stated the Ventura County Air Pollution Control District is the appropriate authority to evaluate the decommissioning phases and the sources as defined in CAA. Because EPA’s letter did not state the locally or regionally applicable action had a national scope, the court was not persuaded by Chevron arguing the EPA’s interpretation of CAA had national applicability. The D.C. Circuit dismissed Chevron’s petition for review without reaching the merits. The venue in the matter lies in the Ninth Circuit, where Chevron filed a protective petition for review.

In City of Annapolis v. BP P.L.C., the U.S. District Court for the District of Maryland, on removal from Maryland Circuit Court, held that state common law and statutory claims brought by the City of Annapolis and Anne Arundel County against numerous fossil fuel corporations seeking damages and equitable relief for allegedly concealing climate-related harms caused by fossil fuels belong in Maryland state court and not federal court. The court found no removal jurisdiction by way of the defendants’ arguments for removal, five of which (federal common law, necessary or substantial federal interests, Outer Continental Shelf Lands Act, federal officer removal statute, and federal enclaves) were previously rejected by the Fourth Circuit in a similar action brought by the City of Baltimore in Mayor & City Council of Baltimore v. BP P.L.C. The court also found no removal jurisdiction under two new grounds—an argument that a materially expanded evidentiary record supported federal officer jurisdiction and an argument that plaintiffs’ claims of product misrepresentation created a federal question by implicating defendants’ First Amendment rights. The court denied defendants’ motions to stay the proceedings and granted plaintiffs’ motions to remand the proceedings to the Maryland Circuit Court.

In Young v. EPA, the U.S. District Court for the District of Columbia ruled on cross motions for partial summary judgement and rejected claims by two former members of the Clean Air Advisory Committee that EPA, in reconstituting the memberships of the Clean Air Scientific Advisory Committee and the Science Advisory Board in 2021, had violated the requirement of the Federal Advisory Committee Act (FACA) that advisory committee and board memberships be “fairly balanced” and free of “inappropriate influence” by the appointing authority and had otherwise acted arbitrarily and capriciously in contravention of the Administrative Procedure Act (APA). In March of 2021, the EPA Administrator reconstituted the committee and board by dismissing all members and selecting new members from among a group of nominees, which included the plaintiffs who were not ultimately selected. Shortly before disclosing the new memberships, EPA announced its intention to reconsider the Trump administration’s 2020 decision to retain and not revise the NAAQS for particulate matter (PM). The newly constituted committee then met and voted to adopt more stringent PM standards. For relief, the plaintiffs had sought a permanent injunction and writ of mandamus enjoining the committee and board “‘from conducting any committee activities’ and prohibiting the EPA [] from ‘receiving, relying on, or otherwise using any report, advice, or other action’” and sought an order directing EPA to reconstitute the committee and board in compliance with FACA.

E. Greenhouse Gases

In Louisiana v. Biden, the U.S. District Court for the Western District of Louisiana ruled on an action filed by the State of Louisiana and nine other States against President Biden and numerous federal officials, departments, and agencies. Plaintiffs moved for a preliminary injunction against Defendants to enjoin implementation of Executive Order 13990, which reinstated the Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) and ordered the IWG to publish Interim Estimates for the Social Cost of Carbon, Nitrous Oxide, and Methane (Interim Estimates) for federal agencies to use when monetizing the value of changes in greenhouse gas emissions resulting from regulatory and other agency action. Plaintiffs claimed that: the Interim Estimates violated the APA by not undergoing a notice-and-comment process; President Biden and the IWG lacked the authority to enforce the Interim Estimates; and Defendants acted beyond congressional authority by using global considerations as the foundation for its regulatory policy.

The district court found that Plaintiffs had standing because Plaintiffs established an injury-in-fact of the Interim Estimates imposing new obligations on the states and increasing their regulatory burden, demonstrated that the injury is fairly traceable to the challenged conduct, and showed that the remedy sought will redress their injury. The district court found that Plaintiffs’ claims were reviewable under the APA because Interim Estimates were final agency actions, Plaintiffs interests fell within the zone of interests, and no statute precluded judicial review of the agency action. The district court also found that Plaintiffs met the burden of proof to obtain a preliminary injunction. Plaintiffs showed they were likely to succeed on the merits because President Biden and the IWG lacked authority to enforce the Interim Estimates, the Interim Estimates were promulgated without complying with the APA, the Interim Estimates were arbitrary and capricious, and the Interim Estimates were contrary to law. Plaintiffs made a clear showing of an injury-in-fact. Further, the district court provided that the balance of injuries weighed substantially in the favor Plaintiffs and that the public interest and balance of equities weighed heavily in favor of granting a preliminary injunction.

In Louisiana by and through Landry v. Biden, the Fifth Circuit stayed the district court’s preliminary injunction pending appeal in an action filed by the State of Louisiana and nine other States against President Biden and numerous federal officials, departments, and agencies. Plaintiffs brought suit against Defendants in April 2021 to preemptively challenge Interim Estimates developed by the IWG, claiming that the Interim Estimates would increase regulatory burdens for federal agencies that must use them when conducting cost-benefit analyses for regulatory or other agency action. The district court entered a preliminary injunction enjoining the Defendants from using the Interim Estimates. Defendants moved to stay the injunction pending appeal, arguing that Plaintiffs “lack[ed] standing, their claims are not ripe, and the Interim Estimates are not final agency action under the [APA].” The Fifth Circuit found that Plaintiffs lacked standing, as the Plaintiffs’ alleged injury was hypothetical and therefore did not meet the standards for Article III standing. The Fifth Circuit also found that Defendants showed that they would be irreparably harmed absent a stay. As such, the Fifth Circuit granted the Defendants’ motion to stay the preliminary injunction pending appeal and stayed the district court’s preliminary injunction pending appeal.

In State of Missouri v. Biden, the Eighth Circuit affirmed a district court judgment involving an action filed by the State of Missouri and twelve other States against President Biden, the IWG, and numerous federal officials, departments, and agencies. Plaintiffs brought suit against Defendants after President Biden reestablished the IWG and directed the IWG to publish interim and final estimates of the social costs of greenhouse gas emissions, and required federal agencies to use the estimates when monetizing the costs and benefits of future agency regulations and actions. The Plaintiffs requested injunctive and declaratory relief, and asserted four causes of action: (1) violation of separation of powers; (2) violation of agency statutes; (3) procedural violation of the APA; and (4) substantive violation of the APA. The Defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The district court concluded that the Plaintiffs lacked standing and that their claims were not ripe for adjudication. On appeal, Plaintiffs argued that they had Article III standing, their claims are ripe for review, and that the Eighth Circuit should remand with instructions to grant the preliminary injunction. The Eighth Circuit affirmed the district court judgment, concluding that the Plaintiffs did not have standing.

Regulatory Developments

A. Title I: NAAQS, Federal Implementation Plans & State Implementation Plans

On February 8, 2022, EPA issued a notice announcing the designation of a new reference method for measuring concentrations of nitrogen dioxide in ambient air.

On March 10, 2022, EPA published notice that Volumes 1 and 2 of the Integrated Review Plan for the Lead National Ambient Air Quality Standards would be made available for public comment.

On April 6, 2022, EPA proposed Federal Implementation Plan requirements to address twenty-six states’ obligations to eliminate significant contributions to nonattainment, or interference with maintenance, of the 2015 ozone NAAQS in other states under the “good neighbor” provision. EPA “propose[d] establishing nitrogen oxides emissions budgets [that would] requir[e] fossil fuel-fired power plants in 25 states to participate in an allowance-based ozone season trading program [starting] in 2023.” EPA would also establish nitrogen oxides emissions limitations for other industrial stationary sources in twenty-three states.

On April 13, 2022, EPA issued a proposed rule to determine that one “Serious” nonattainment area attained the 2008 ozone NAAQS and five areas failed to attain the NAAQS by July 20, 2021, the attainment date. On October 7, 2022, EPA finalized the rule. The five failing areas will be reclassified as “Severe” nonattainment areas.

On April 13, 2022, EPA proposed actions to fulfill its obligation to determine whether thirty-one Marginal ozone nonattainment areas attained the 2015 ozone NAAQS by August 3, 2021. EPA proposed to find that six areas attained the NAAQS, to grant Utah’s request for a one-year extension, and to find that twenty-four areas failed to attain the NAAQS. On October 7, 2022, EPA issued the final rule, determining five areas had attained the NAAQS and twenty-two areas had not, while granting Utah’s one-year extension.

On April 14, 2022, EPA published notice of the availability of the Supplement to the 2019 Integrated Science Assessment for Particulate Matter, which provides the scientific basis for EPA’s decisions for reconsideration of its review of the 2020 NAAQS.

On April 28, 2022, EPA issued a proposed rule to add a compound to the list of compounds excluded from the regulatory definition of volatile organic compounds under the CAA on the basis it makes a negligible contribution to ozone formation.

On April 29, 2022, EPA published notice that the draft Policy Assessment for the Reconsideration of the Ozone NAAQS was made available for public comment.

On May 12, 2022, EPA published notice it “ha[d] finalized a list of additional areas subject to the mitigation plan requirements found in the 2016 Exceptional Events Rule,” which “require[s] states to develop mitigation plans for areas with historically documented or known seasonal exceptional events.” The additional areas are in Nevada, California, Wyoming, and New Mexico and experience high winds and risks of wildfires.

On May 26, 2022, EPA published final notice of the release of the policy assessment for Reconsideration of the NAAQS for Particulate Matter, prepared as part of EPA’s reconsideration of the 2020 particulate matter NAAQS.

On October 12, 2022, EPA issued a proposed rule to revise the Federal Air Rules for Reservations, a collection of Federal Implementation Plans for Indian reservations in Idaho, Oregon, and Washington. The proposed revisions “clarify aspects of the initial rules, improve implementation, reflect air quality improvement strategies [used] in neighboring jurisdictions, and add provisions to address [] particulate matter emissions.”

On October 28, 2022, EPA issued a notice announcing the designation of a new equivalent method for measuring concentrations of PM_2.5 in ambient air.

On December 5, 2022, EPA issued a notice announcing the public availability of the State Implementation Plan compilations for each state in accordance with requirements under CAA section 110(h).

On December 8, 2022, EPA issued a final rule promulgating a Federal Implementation Plan of emissions control requirements for existing, new, and modified oil and natural gas sources on lands within the Uintah and Ouray Indian Reservation in Utah. The Federal Implementation Plan was developed to maximize air quality improvement and promote more consistency in regulations across all areas in the Uinta Basin.

On December 23, 2022, EPA issued a proposed rule to change the implementing regulations governing the development and submission of state plans and the promulgation of a Federal plan under CAA section 111(d). The proposed amendments include revisions to the timing requirements to address the vacatur by the D.C. Circuit following its decision in American Lung Association as well as regulatory mechanisms to improve flexibility and efficiency of plan development and implementation. The EPA is also proposing new requirements for reasonable notice and opportunity for public participation and clarifying requirements for states’ consideration of “remaining useful life and other factors,” the definition of standard of performance, and compliance flexibilities.

B. New Source Review (NSR), Prevention of Significant Deterioration, New Source Performance Standards (NSPS), & Title V Permitting

On January 21, 2022, EPA issued a notice of availability of six broadly applicable alternative test methods that EPA approved under and in support of NSPS and National Emission Standards for Hazardous Air Pollutants (NESHAP) between January 1, 2021, and December 31, 2021.

On February 23, 2022, EPA issued a proposed rule that presents the results of its review of the NSPS for Lead Acid Battery Manufacturing Plants and the technology review for the NESHAP for Lead Acid Battery Manufacturing Area Sources. EPA proposed revised lead emission limits and several amendments for area source NESHAP and a new NSPS subpart.

On April 1, 2022, EPA issued a rule to re-propose a 2016 document that removed “the emergency affirmative defense provisions found in regulations for state and federal operating permit programs under the CAA.” The provisions are being removed because they are inconsistent with the enforcement structure of the CAA and D.C. Circuit decisions.

On April 26, 2022, EPA issued a proposed rule to correct and update regulations for source testing of emissions. The proposed rule would correct testing provisions, update outdated procedures, and approve alternative procedures, but it would not add new substantive requirements for source owners or operators.

On May 16, 2022, EPA issued a proposed rule for “new and revised standards of performance for electric arc furnaces [] and argo-oxygen [] decarburization vessels in the steel industry.” EPA is also proposing amendments for certain provisions in the current NSPS that would apply to vessels constructed before May 16, 2022.

On May 18, 2022, EPA presented the preliminary results of its review of the NSPS for Automobile and Light Duty Truck Surface Coating Operations. EPA proposed a new NSPS subpart that revises VOC emission limits for certain surface coating operations. Amendments under the new NSPS subpart will harmonize it with NESHAP requirements.

On June 21, 2022, EPA issued a proposed rule to amend the Standards of Performance for Industrial Surface Coating of Plastic Parts for Business Machines. EPA proposes the addition of a new subpart to the NSPS with volatile organic compound emission limitations for certain coating operations.

On October 14, 2022, EPA issued a proposed rule to repeal regulatory amendments adopted in 2008 “that addressed the consideration of ‘fugitive’ emissions of air pollutants from stationary sources.” Those amendments have already been stayed. “As a result of the proposed changes, all existing major stationary sources would be required to include fugitive emissions in determining whether a physical or operational change constitutes a ‘major modification’ that would require a permit under the PSD or NNSR programs.”

On December 1, 2022, EPA issued a proposed rule to update the current NSPS “for secondary lead smelters and add a new subpart that applies to affected sources constructed, reconstructed, or modified after the date of th[e] proposed rule.” The updates to the existing regulations include revised equipment definitions and requirements to be more consistent with the NESHAP. The new subpart includes updated PM and opacity emission limits.

On December 6, 2022, EPA issued a supplemental notice of proposed rulemaking to update and expand standards to reduce greenhouse gas and pollutant emissions from the Crude Oil and Natural Gas source category that were proposed in November 2021. The supplemental proposal includes standards for sources not addressed in the earlier proposal, revisions to strengthen standards for sources of leaks, modifications to certain elements of the proposed standards in response to public comments, and details of timelines and requirements that apply to states to limit methane pollution.

C. Title II - Mobile Sources and Fuels

On February 2, 2022, EPA issued a final rule modifying compliance dates under the Renewable Fuel Standard (RFS) program. EPA extended the RFS reporting deadline for 2019 for small refineries and for 2020 through 2022 for all obligated parties.

On February 3, 2022, EPA issued a proposed rule to establish particulate matter emission standards and test procedures for both new type design and in-production engines of commercial passenger aircraft, freight aircraft, and larger business jets. The standards will bring the U.S. into harmony with the United Nations’ Internal Civil Aviation Organization’s 2017 and 2020 standards. On November 23, 2022, EPA finalized the rule. This final action reflects the importance of controlling particulate matter emissions and of achieving uniformity in aviation regulations.

On April 18, 2022, EPA issued a proposed rule to approve new pathways and make them eligible to generate Renewable Identification Numbers (RINs) under the RFS program. The pathways would include “diesel, jet fuel, heating oil, naphtha, and liquefied petroleum gas [] produced from canola/rapeseed oil via a hydrotreating process.” On December 2, 2022, EPA issued a final rule after determining the pathways meet the emissions reduction requirements. The final rule adds these pathways to the list of approved pathways and also adds a new definition of “canola/rapeseed oil.”

On April 25, 2022, EPA issued a notice of its denial of thirty-six small refinery exemption petitions under the RFS program in a final action titled “April 2022 Denial of Petitions for RFS Small Refinery Exemptions.”

On April 25, 2022, EPA issued a notice of its action to provide an alternative compliance demonstration approach to small refineries whose 2018 petitions for small refinery exemptions under the RFS program were denied in April 2022.

On June 8, 2022, EPA issued a notice of its denial of sixty-nine small refinery exemption petitions under the RFS program in a final action titled “June 2022 Denial of Petitions for RFS Small Refinery Exemptions.”

On June 8, 2022, EPA issued a notice of its action to provide an alternative compliance demonstration approach to small refineries whose 2016, 2017, and/or 2018 petitions for small refinery exemptions under the RFS program were denied in April and June 2022 after being remanded to EPA for reconsideration.

On June 13, 2022, EPA issued a proposed rule to modify the RIN retirement schedule and give small refineries more time to comply with their 2020 RFS obligations, given EPA’s delay in deciding exemptions and setting compliance deadlines. On September 2, 2022, EPA finalized this rule and announced an optional alternative RIN retirement schedule.

On July 1, 2022, EPA issued its annual rules for nationally applicable renewable fuel volume targets. In the action, EPA established the applicable volumes and annual percentage standards for cellulosic biofuel, advanced biofuel, total renewable fuel, and biomass-based diesel. The action also adds a supplemental volume of 250 million gallons for 2022 and addresses regulatory changes to the RFS program, “including regulations for the use of biointermediates to produce qualifying renewable fuel.”

On October 17, 2022, EPA issued a proposed finding that “lead air pollution may reasonably be anticipated to endanger public health and welfare within the meaning of section 231(a) of the [CAA].” EPA is also proposing to find that emissions of lead from certain aircraft engines “cause or contribute to [] lead air pollution that may reasonably be anticipated to endanger public health and welfare under section 231(a) of the [CAA].”

On December 30, 2022, EPA issued a proposed rule for required RFS volumes and percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel for 2023, 2024, and 2025. The proposed rule also aims to strengthen and expand the RFS program through changes to regulations governing the generation of qualifying renewable electricity. This update would allow parties to register with EPA and generate RINs from renewable electricity produced from qualifying renewable biomass and used as transportation fuel. EPA issued a notice that it will hold a virtual public hearing on January 10, 2023, for this proposal.

D. Title VI - Stratospheric Ozone

On January 20, 2022, EPA issued a determination of acceptability expanding the list of acceptable substitutes “for use in the refrigeration and air conditioning; foam blowing; aerosols; cleaning solvents; and adhesives, coatings, and inks sectors.” This determination was made pursuant to the Significant New Alternatives Policy (SNAP) program.

On May 4, 2022, EPA issued a final rule listing a particular refrigerant (HFO-1234yf) as acceptable under the SNAP program for motor vehicle air conditioning systems in certain types of new off-road vehicles.

On May 20, 2022, EPA withdrew part of proposed and supplemental rulemaking from June 2020 and October 2021 that would have listed three foam blowing agents described as substitutes to ozone-depleting substances under the SNAP program.

On June 16, 2022, EPA withdrew a proposed rule from September 2021 that would have required companies to control, capture, and/or destroy a hydrofluorocarbon (HFC-23 byproduct) generated at regulated plants that manufacture hydrochlorofluorocarbons.

On July 28, 2022, EPA issued a proposed rule to list new alternatives for the refrigeration and air conditioning and fire suppression sectors under the SNAP program. EPA also requests advance comment on potential approaches to SNAP listing decisions for very short-lived substances that have ozone depletion potentials.

On October 4, 2022, EPA published notice of its decision granting two petitions under the American Innovation and Manufacturing Act of 2020 (AIM Act). The petitions requested that EPA restrict the use of certain regulated substances in commercial refrigeration applications and promulgate rules that restrict the use of a regulated substance in the sector or subsector in which the regulated substance is used.

On October 11, 2022, EPA published notice of its decision issuing 2023 allowances for the production and consumption of hydrofluorocarbons in accordance with the phasedown schedule required by the AIM Act.

On October 17, 2022, EPA published a notice of data availability regarding the American hydrofluorocarbon reclamation market and to solicit stakeholder input that will inform the regulatory process for an upcoming rule EPA is considering. The notice makes available a draft report, identifies possible data gaps, and requests comment on areas where additional information could improve EPA’s understanding of the American hydrofluorocarbon reclamation market.

On November 3, 2022, EPA published a proposed rule to implement the AIM Act by establishing “methodology for allocating hydrofluorocarbon production and consumption allowances for [] 2024 through 2028.” The proposal would also amend the consumption baseline to reflect updated data, codify the existing approach of how allowances must be expended for import of regulated substances, revise recordkeeping and reporting requirements, and implement other modifications to the existing regulations.

On December 15, 2022, EPA issued a proposed rule to implement provisions of subsection (i) of the AIM Act, titled “Technology Transitions.” The rulemaking proposes to restrict the use of hydrofluorocarbons in specific sectors, to establish a process for submitting technology transitions petitions, to establish recordkeeping and reporting requirements, and to address other elements to facilitate implementation of the AIM Act.

E. Greenhouse Gases

On February 15, 2022, EPA issued a notice announcing the availability of its Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2020 for public review.

On March 14, 2022, EPA issued a notice rescinding its 2019 decision to withdraw a 2013 CAA waiver of preemption for the State of California’s greenhouse gas emission standards and zero emission vehicle sale mandate. As a result of the action, EPA’s 2013 waiver for California’s Advanced Clean Car (ACC) program comes back into force. The decision also allows other states to adopt and enforce California’s GHG standards so long as they meet the requirements of CAA section 177.

On March 28, 2022, EPA issued a proposed rule to reduce air pollution from highway heavy-duty vehicles and engines by changing the standards, test procedures, useful life, warranty, and other requirements in the heavy-duty emission control program. EPA also proposed targeted updates to the existing Heavy-Duty Greenhouse Gas Emissions Phase 2 program. EPA co-proposed two regulatory options for oxides of nitrogen standards, which would result in different numeric levels of the standards and lengths of useful life and warranty periods.

On April 29, 2022, EPA issued a notice of final action denying four petitions for reconsideration, rulemaking, or reopening under CAA section 202(a).

On May 2, 2022, the National Highway Traffic Safety Administration, on behalf of the Department of Transportation, finalized revised fuel economy standards for passenger cars and light trucks. The revised standards would require an industry fleet-wide average of forty-nine miles per gallon in model year 2026 and would provide consumers net savings. The final rule is responsive to President Biden’s January 20, 2021, executive order.

On May 20, 2022, EPA began accepting applications for the Clean School Bus Rebates Program. The Infrastructure Investment and Jobs Act amended the Clean Bus Program under the Energy Policy Act of 2005, providing $5 billion for the replacement of existing school buses with clean, zero-emission school buses from 2022 to 2026.

On June 21, 2022, EPA issued a proposed rule to amend provisions in the Greenhouse Gas Reporting Rule. The rule would improve the existing calculation, recordkeeping, and reporting requirements by incorporating new data and updated methodologies, providing additional data for new source and emission categories, and streamlining data collection to increase efficiency and flexibility.

On July 28, 2022, EPA issued a final rule that improves the Greenhouse Gas Emissions Model compliance tool for heavy-duty vehicles by amending the procedures for demonstrating compliance with the carbon dioxide emission standards. It does so by adding several corrections, clarifications, and flexibilities to the tool. This final rule follows a proposed rule on May 12, 2020, and a supplemental proposed rule on June 29, 2021.

On November 30, 2022, the State of California’s Advanced Clean Cars II rule (ACC II), a suite of regulations aimed at addressing pollution from vehicles in the state, became effective. ACC II sets annual zero-emission vehicle (ZEV) and clean plug-in hybrid-electric vehicle sales requirements in California from 2026 to 2035. ACC II requires thirty-five percent of vehicle sales be zero emission in 2026, increasing linearly to 100 percent in 2035. ACC II also includes battery warranty and vehicle durability requirements, voluntary credits for sales to low-income buyers in “environmental justice” communities, and a method for phasing in ZEV credits accumulated in recent years.

F. Hazardous Air Pollutants

On January 5, 2022, EPA issued a final rule adding 1-BP to the list of hazardous air pollutants in CAA section 112(b)(1) in response to public petitions.

On January 11, 2022, EPA published the results of its residual risk and technology review for the NESHAP for major source Primary Copper Smelters. Based on the results, EPA proposed new emissions standards and work practice standards in the major source NESHAP applicable to Primary Copper Smelters.

On February 4, 2022, EPA proposed to take comment on two issues raised in petitions for reconsideration concerning the final NESHAP for Miscellaneous Organic Chemical Manufacturing published on August 12, 2020.

On February 9, 2022, EPA issued a proposed rule to revoke a May 22, 2020, finding that it is not appropriate and necessary to regulate coal- and oil-fired electric utility steam generating units under CAA section 112. The proposed rule would reaffirm EPA’s April 25, 2016, finding that “it remains appropriate and necessary to regulate hazardous air pollutant[s]” from these units after considering costs. EPA is also reviewing a residual risk and technology review of Mercury and Air Toxics Standards.

On February 14, 2022, EPA finalized technical revisions and clarifications for the NESHAP for MSW Landfills established in a March 26, 2020, final rule.

On March 7, 2022, EPA published the results of its technology review for the NESHAP for Wood Preserving Area Sources. Based on the results of its review, EPA proposed technical corrections but no substantive changes to the standards.

On March 9, 2022, EPA published a final rule amending the NESHAP for Stational Combustion Turbines. The final rule removes a stay of the NESHAP for new lean premix gas-fired and diffusion flame gas-fired turbines in place since 2004.

On May 6, 2022, EPA issued a rule finalizing the residual risk and technology review and beyond-the-floor maximum achievable control technology determination conducted for the Mercury Cell Chlor-Alkali Plants source category regulated under NESHAP. The rule amends the MACT standards to prohibit mercury emissions from existing plants based on those determinations.

On June 7, 2022, EPA issued a proposed rule to amend the NESHAP for Miscellaneous Coating Manufacturing facilities. EPA finalized the rule on November 10, 2022, including amendments to address provisions regarding electronic reporting, simplify the petition for the exemption process, clarify requirements for emissions during periods of startup, shutdown, and malfunction, and make technical and clarifying corrections.

On June 10, 2022, EPA issued a proposed rule to amend the NESHAP for Gasoline Distribution facilities and NSPS for Bulk Gasoline Terminals. The revised requirements would reflect cost-effective developments in practices and would reduce emissions of hazardous air pollutants and volatile organic compounds from this source category.

On August 10, 2022, EPA issued a final ministerial rule amending the Code of Federal Regulations to reflect the 2015 D.C. Circuit decision, Delaware Department of Natural Resources and Environmental Control v. EPA, which vacated provisions in the NESHAP for Stationary Reciprocating Internal Combustion Engines and in the NSPS for Stationary Internal Combustion Engines.

On October 6, 2022, EPA issued a final rule amending the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters. The final action revises thirty-four emission limits which had been previously amended in 2013 and sets compliance dates for these new limits. These limits address concerns by the D.C. Circuit’s 2016 decision, U.S. Sugar Corp. v. EPA. In the action, EPA also explains its use of carbon monoxide as a surrogate for organic hazardous air pollutants.

On December 21, 2022, EPA issued a rule finalizing decisions on two issues for which reconsideration was granted regarding the 2020 Miscellaneous Organic Chemical Manufacturing NESHAP. It makes “no changes to the risk assessment or related regulatory text for the miscellaneous organic chemical manufacturing source category.”

On December 22, 2022, EPA issued a rule finalizing amendments to the national emission standards for hazardous air pollutants for the site remediation source category. The amendments “remove exemptions from the rule for site remediation activities performed under [] CERCLA as [] remedial action[s] or [] non-time-critical removal action[s]” and also remove exemptions for site remediation activities performed under RCRA as corrective actions at treatment, storage, and disposal facilities.

G. Cross-State Air Pollution Rule

On February 25, 2022, EPA published a notice of “the availability of data on emission allowance allocations to certain units under the Cross-State Air Pollution Rule (CSAPR) trading programs.”

On April 18, 2022, EPA published another “notice of the availability of data on emission allowance allocations to certain units under the [] CSAPR trading programs,” including final calculations and spreadsheets for the allocations of allowances from the new unit set-asides for the 2021 control periods.

H. Voluntary Consensus Standards

On March 29, 2022, EPA published a proposed rule “to update the incorporation by reference of several voluntary consensus standards in the [EPA’s] formaldehyde standards for composite wood products regulations under the Toxic Substances Control Act (TSCA).” EPA also proposed changes to the rules governing remote inspections for third-party certifiers as well as technical and clarifying updates to the definitions section concerning production and the third-party certification process.

On September 20, 2022, EPA published a supplemental notice of proposed rulemaking to update two of the incorporated by reference voluntary consensus standards in the EPA’s formaldehyde standards for composite wood products regulations under TSCA.