Section 231(a)(1) of the Clean Air Act (42 U.S.C. § 7571(a)(1)) directs EPA’s Administrator to investigate “emissions of air pollutants from aircraft in order to determine … the extent to which such emissions affect air quality … throughout the United States, and [ ] the technological feasibility of controlling such emissions.” The Act then directs the Administrator to “issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare[,]” so long as the standards will not “significantly increase noise [or] adversely affect safety.” Clean Air Act § 231(a)(2)(A), (B)(ii) (42 U.S.C. § 7571(a)(2)(A), (B)(ii)). In recent years, EPA has relied on this authority to issue standards for greenhouse gas and particulate matter (PM) emissions from aircraft engines, and has also proposed to find that lead emissions from aircraft engines endanger public health or welfare, as discussed below.
In the final days of the Trump Administration, EPA finalized greenhouse gas emission standards for certain types of jet engines and turboprop engines that were “equivalent to” the International Civil Aviation Organization’s 2017 carbon dioxide standards. As described in the Federal Register notice, the rules generally apply to civil “subsonic jet airplanes with a maximum takeoff mass (MTOM) greater than 5,700 kilograms and subsonic propeller-driven (e.g., turboprop) airplanes with a MTOM greater than 8,618 kilograms.” The standards will apply to covered airplanes already in production beginning in 2028, unless their designs are changed in a way that increases their greenhouse gas emissions, in which case the standards will apply beginning in 2023. For new type designs, the standards “apply to covered airplanes for which an application for certification is submitted to the FAA on or after” the date the rule was published in the Federal Register, or in 2023, “for new type designs that have a maximum takeoff mass (MTOM) of 60,000 kilograms MTOM or less and have 19 passenger seats or fewer[ ].”
Three environmental groups (Center for Biological Diversity, Friends of the Earth, and Sierra Club) filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) (Case No. 21-1021), arguing that the ICAO’s standards were “outdated” and that airplanes were expected to meet those standards even without EPA’s rule. Twelve states and the District of Columbia filed a separate petition for review (Case No. 21-1018), which was consolidated with the first.
On June 30th, the D.C. Circuit issued an opinion denying the petitions for review. In particular, the court rejected the petitioners’ argument that Section 231 must be technology-forcing – i.e., that it requires EPA to “consider the emission reductions that may be achieved with feasible technology, even if such technology is not currently in use.” To the contrary, the court held, Section 231 “does not specify the substantive content of [the emission standards it requires], nor does it specify any factors the agency must consider.” The court further held that the petitioners had not shown the greenhouse gas emission standards were arbitrary and capricious simply because they “prioritize[d] harmonization with international standard over imposing more stringent domestic emissions standards.” “Given the agency’s reasonable conclusion that the best way to reduce global greenhouse gas emissions was to coordinate around the ICAO standards,” the court held, “there was no need for the agency to exhaustively examine alternatives that departed from these standards.”
On November 23, 2022, EPA finalized particulate matter (PM) emission standards for “civil subsonic jet aircraft engines with rated output of greater than 26.7 kN” and “civil jet engines for use on supersonic airplanes with a rated output at or below 26.7 kN.” The standards match the International Civil Aviation Organization’s 2017 and 2020 standards. For subsonic aircraft engines, the standards apply to in-production engines and new type designs submitted for certification starting in 2023.
Center for Biological Diversity, Friends of the Earth and the Sierra Club filed a petition for review (Case No. 23-1019) challenging the rulemaking in the D.C. Circuit on January 20, 2023. That same day, eleven states (California, Connecticut, Illinois, Massachusetts, Maryland, New Jersey, New York, Oregon, Pennsylvania, Vermont, and Washington) filed their own petition (Case No. 23-1020). The two cases were consolidated. On February 2nd, the petitioners filed an unopposed motion asking the court to hold the consolidated cases in abeyance, pending a decision in the challenges to EPA’s greenhouse gas emission standards for jet airplanes (discussed above), which the petitioners said “involve overlapping questions of law and similar arguments.” The D.C. Circuit granted the motion on February 7th. Following the D.C. Circuit’s rejection of challenges to EPA’s greenhouse gas emission standards, the petitioners moved to dismiss their challenges to the particulate matter emission standards. The D.C. Circuit granted that motion on August 17th.
On October 17, 2022, EPA published a proposed finding that “emissions of lead” from “aircraft engine[s] … capable of using leaded aviation gasoline” in “aircraft and ultralight vehicles” meet the statutory trigger for regulation under Clean Air Act § 231(a)(1) – i.e., they “may reasonably be anticipated to endanger public health and welfare.” The proposed finding states that “current lead emissions from covered aircraft are an important source of air-related lead in the environment and that engine emissions of lead from covered aircraft are the largest single source of lead to air in the U.S.” It further states that monitoring and modeling suggest such lead emissions may be contributing to exceedances of the lead NAAQS around some airports in the United States. If EPA finalizes this finding, EPA will then propose lead emission standards. EPA plans to issue a final rule later this year.
In April 2015, EPA promulgated its Coal Combustion Residuals rule under Subtitle D of the Resource Conservation and Recovery Act (RCRA). The rule established numerous requirements for the disposal of coal combustion residuals (CCR) in landfills and surface impoundments, including structural integrity design criteria and safety assessment requirements; liner requirements for new and expanded impoundments and landfills; site restrictions for new landfills and surface impoundments; groundwater monitoring requirements; requirements for closing CCR units; and more.
In July 2018, EPA finalized amendments to the 2015 CCR Rule. The amendments permitted EPA (or states with approved programs) to “[s]uspend groundwater monitoring requirements if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and post-closure care … .” They allowed permitting authorities (as opposed to professional engineers) to certify that facilities are complying with the CCR Rule’s requirements. They established risk-based groundwater protection standards (GWPS) for the four constituents in 40 CFR Part 257, Appendix IV, without maximum contaminant levels (MCLs) under the Safe Drinking Water Act. And they extended to October 31, 2020, the deadline by which surface impoundments were required to stop accepting CCR and close if they could not comply with the requirement in 40 C.F.R. § 257.60 to place facilities at least five feet above the upper limit of the uppermost aquifer, or if they are unlined and leaking, causing a statistically significant increase over the GWPS. The 2018 rule was challenged in the D.C. Circuit, and ultimately remanded without vacatur for reconsideration.
In August 2018, the D.C. Circuit issued Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018), which granted in part certain environmental organizations’ challenges to the 2015 CCR Rule and remanded certain provisions of the rule at EPA’s request. The court found that the rule’s provisions allowing “existing, unlined surface impoundments to continue operating until they cause groundwater contamination” were “arbitrary and contrary to RCRA” because groundwater contamination would not be “promptly detected,” “promptly stopped,” or able to be remedied “once it occurs.” The court struck down provisions treating clay-lined impoundments as if they were lined with geomembranes, finding those provisions “failed to ensure ‘no reasonable probability’ of adverse effects to the environment, as RCRA requires.” It also struck down the rule’s exemption of “legacy ponds” (“inactive impoundments at inactive facilities”) from its preventative regulations.
On August 28, 2020, EPA finalized a rule (referred to as “Part A”) to respond to the D.C. Circuit’s ruling in Utility Solid Waste Activities Group. Among other changes, the rule reclassified clay-lined impoundments as “unlined” impoundments, and extended the deadlines in 40 C.F.R. § 257.101(a)(1) and (b)(1)(i) by which unlined impoundments (and those that cannot comply with the aquifer location requirement) must stop accepting waste and begin closure to “not later than April 11, 2021.” The rule also revised the alternative closure standards in 40 C.F.R. § 257.103 to allow impoundments to continue to receive both CCR and non-CCR waste if the impoundment’s owner or operator demonstrates that there is no alternative disposal capacity on- or off-site and either (1) “it was technically infeasible to complete the measures necessary to obtain alternative disposal capacity … by April 11, 2021”; or (2) the facility is permanently closing a coal-fired boiler. Impoundments qualifying under option (1) could continue to operate until October 2023 or, for impoundments closing as a result of the Utility Solid Waste Activities Group ruling, October 2024. Impoundments qualifying under option (2) could continue to operate until October 2023 (if 40 acres or smaller) or October 2028 (if larger than 40 acres).
In November 2020, several environmental organizations filed a petition for review of the “Part A” rules in the D.C. Circuit. That case, Labadie Environmental Organization v. EPA (Case No. 20-1467), is being held in abeyance by agreement of all of the parties, while the petitioners review EPA’s decisions on the demonstrations submitted under options (1) and (2).
EPA’s website lists 59 facilities that submitted demonstrations under options (1) and (2). In January 2022, EPA announced that it was proposing:
In July 2022, EPA proposed to conditionally approve alternative closure deadlines for Calaveras Power Station (San Antonio, Texas) for its sludge recycling holding pond, and Mountaineer Power Plant (Letart, West Virginia) for its bottom ash ponds. In October 2022, EPA proposed to conditionally approve an extension in the deadline to close the ash pond at A.B. Brown Generating Station (Mount Vernon, Indiana). And in July 2023, EPA proposed to deny an extension in the deadline to close the ash ponds at Waukegan Generation Station (Waukegan, Illinois). The only proposed determination that has been finalized was the determination for Gavin, which was denied effective November 28, 2022. Fourteen facilities withdrew their extension applications because they stopped receiving waste.
Various affected facilities and the Utility Solid Waste Activities Group filed petitions in the D.C. Circuit in 2022 for review of EPA’s actions, which have been consolidated as Electric Energy, Inc. v. EPA (Case No. 22-1056). A variety of companies and organizations also filed petitions in the D.C. Circuit in 2023 for review of EPA’s final determination for Gavin, which have been consolidated as Electric Energy, Inc. v. EPA (Case No. 23-1035). The D.C Circuit denied motions to hold the Gavin appeal in abeyance or consolidate the two proceedings. However, on August 8th, the court held that oral arguments for the two proceedings would be held on the same day and before the same panel of judges.
Also in November 2020, EPA finalized a rule (referred to as “Part B”), effective December 14, 2020, that amended 40 C.F.R. § 257.71(d) to create a process for EPA or a participating state to approve an alternate liner for CCR surface impoundments “constructed without a composite liner or alternate composite liner … .” The rule allows unlined surface impoundments to continue to operate without retrofitting or closing so long as the owner or operator can demonstrate that the unit will pose “no reasonable probability of adverse effects to human health or the environment.” This demonstration requires a two-step process. Initially, a facility was required to submit an application by November 30, 2020 (subsequently extended to December 14, 2020) that demonstrated the unit meets the minimum requirements, including the existence of sufficient monitoring wells. If approved, the facility would then submit a “demonstration package … certified by a qualified professional engineer” by November 30, 2021, presenting evidence that “there is no reasonable probability that operation of the surface impoundment will result in concentrations of constituents listed in appendix IV to this part in the uppermost aquifer at levels above a groundwater protection standard.”
EPA announced that it received eight applications. Two have since been withdrawn. This past January, EPA proposed to deny the remaining applications because it says the facilities “fail[ed] to demonstrate that the surface impoundments comply with the [location or monitoring] requirements of the CCR regulations” and because there was “[e]vidence of potential releases” from some impoundments.
Clean Air Act § 110(a)(2)(d) (42 U.S.C. § 7410(a)(2)(D)) requires state implementation plans (SIPs) to contain “adequate provisions” to prevent any State’s sources or other emissions activities from contributing significantly to nonattainment with, or interfering with maintenance of, a NAAQS in another state, or interfering with another state’s prevention of significant deterioration (PSD) measures.
In 2016, EPA published updates to its Cross-State Air Pollution Rule (CSAPR) “to address interstate transport of ozone pollution with respect to the 2008 ozone NAAQS.” The 2016 CSAPR Update promulgated federal implementation plans (FIPs) that set statewide “budgets” (caps) for emissions of nitrogen oxides (NOx) from twenty-two states’ electric generating units (EGUs) during ozone season (May to September) and set up an allowance trading program among those states. In 2018, EPA revised the SIPs for twenty of those states to reflect EPA’s determination that the FIPs would “fully address[ ]” their “good neighbor obligations for the 2008 ozone NAAQS ... .” In that rulemaking, which EPA called the “CSAPR Close-Out,” EPA found the 2016 CSAPR Update would allow downwind states to attain the 2008 ozone NAAQS by 2023. EPA concluded it was reasonable to look at attainment in 2023, given the time it would take for upwind states to reduce their NOx emissions.
In 2019, the D.C. Circuit held in Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019), that the 2016 CSAPR Update impermissibly “permit[ed] upwind States to continue their significant contributions to downwind air quality problems ... past the statutory deadlines for nonattaining downwind areas to meet the NAAQS for ozone.” The court stopped short of holding that the Clean Air Act permitted no “deviation between the upwind and downwind deadlines,” suggesting that “such deviation” might be permissible if it were “rooted in” the framework of the Act. Then, in New York v. EPA, 781 Fed. Appx. 4 (D.C. Cir. 2019), the D.C. Circuit vacated EPA’s CSAPR Close-Out rule. EPA had conceded that, “under the rule, upwind states will continue contributing significantly to downwind nonattainment in 2021” (the attainment deadline for areas in serious nonattainment of the 2008 ozone NAAQS). The court held that EPA had failed to demonstrate that “it would be impossible to eliminate excess upwind emissions by the downwind deadline” or that “some deviation between upwind and downwind deadlines” was necessary.
In response to the Wisconsin and New York rulings, in 2021, EPA issued a Revised CSAPR Update. As explained in EPA’s fact sheet for the rulemaking, the Revised CSAPR Update promulgated new or revised FIPs for twelve states whose “projected 2021 emissions were found to contribute at or above a threshold of 1% of the NAAQS” to downwind nonattainment or maintenance problems. In particular, the Revised CSAPR Update created a new “CSAPR NOX Ozone Season Group 3 Trading Program” for those states, with new, more stringent emission budgets that began with the 2021 ozone season and with further adjustments through the 2024 ozone season. As with the earlier rulemakings, EPA’s Revised CSAPR Update focused on reductions in ozone season NOx emissions from EGUs, finding that reducing emissions from non-EGUs was not necessary “to eliminate significant contribution or interference with maintenance under the 2008 ozone NAAQS … .”
The Midwest Ozone Group filed a petition for review of the Revised CSAPR Update in the D.C. Circuit in June 2021 (Case No. 21-1146). On March 3rd, in Midwest Ozone Grp. v. EPA, 61 F.4th 187 (D.C. Cir. 2023), the D.C. Circuit denied the petition, finding that the Midwest Ozone Group had not shown that the Revised CSAPR Update was arbitrary or capricious. The Midwest Ozone Group filed a petition for panel rehearing or for en banc rehearing. The court denied that petition on April 25th.
In 2022, EPA published several Federal Register notices proposing to disapprove almost two dozen states’ SIP submissions for failure to comply with their “good neighbor” obligations under the 2015 ozone NAAQS. On February 13th, EPA finalized its disapproval for 19 states (Alabama, Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma, Texas, Utah, and West Virginia), partially approved the SIP submissions for Minnesota and Wisconsin, and “deferr[ed] final action” on its proposed disapprovals for Tennessee and Wyoming. In its final rule, EPA explained that it applies a “4-step … framework to evaluate a state’s obligations to eliminate transport emissions under … the ozone NAAQS:
(1) “Identify monitoring sites that are projected to have problems attaining and/or maintaining the NAAQS” in 2023 (i.e., “nonattainment or maintenance receptor[s]”);
(2) “identify states that impact those air quality problems … sufficiently such that the states … warrant further review and analysis”;
(3) “identify the emissions reductions necessary … to eliminate each … upwind state’s significant contribution to nonattainment or interference with maintenance of the NAAQS at the locations identified in Step 1”; and
(4) “adopt permanent and enforceable measures needed to achieve those emissions reductions.”
For step 2, EPA focused on states whose emissions were calculated to contribute at least 1% of the NAAQS (0.70 ppb) “on the days with the highest ozone concentrations at [each problem] receptor based on the 2023 modeling.” And for step 3, “states linked at Steps 1 and 2” were expected to prepare “a multifactor assessment of potential emissions controls” considering cost-effectiveness, total potential emissions reductions, impacts on air quality downwind, and potentially other factors. Applying this framework, EPA summarized its reasons for disapproving the various states’ SIP submissions. For example, EPA disapproved Ohio’s SIP submission because, among other reasons, Ohio had proposed an “alternative definition of maintenance receptors” under Step 1 and “a higher contribution threshold than 1 percent of the NAAQS at Step 2,” both of which EPA rejected, and failed to properly evaluate “emissions control opportunities” under Step 3.
Dozens of parties filed petitions for review of EPA’s disapproval of the various states’ “good neighbor” SIP submissions and moved for stays of EPA’s disapproval pending review:
The States of Nevada, Utah, and Oklahoma, along with other organizations, also filed protective challenges to the final rule in the D.C. Circuit (Case No. 23-1102), although they argued that the Ninth and Tenth Circuits were the proper venues for their petitions. On June 27th, the D.C. Circuit granted a motion to hold the consolidated cases in abeyance pending resolution of challenges to the final rule filed in the Ninth Circuit and Tenth Circuit.
On June 5th, EPA published a final rule that includes FIP requirements for the 21 states whose SIP submissions were disapproved in whole or in part in February, plus Pennsylvania and Virginia, which failed to submit transport SIPs for the 2015 ozone NAAQS. As with the SIP submission rulemaking discussed above, EPA is “deferring final action … on the proposed FIPs for Tennessee and Wyoming pending further review … .”
Starting in 2023, the rule modifies the existing FIPs and emissions budgets for the 12 states currently in the CSAPR NOx Ozone Season Group 3 Trading Program created by the Revised CSAPR Update (Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia); transitions 7 states currently in the CSAPR NOx Ozone Season Group 2 Trading Program (Alabama, Arkansas, Mississippi, Missouri, Oklahoma, Texas, and Wisconsin) to the Group 3 Program; and brings 3 states not currently in any NOx ozone season trading program (Minnesota, Nevada, and Utah) into the Group 3 Program. For these 22 states, the NOx ozone season emissions budgets would be set to reflect the emissions reductions possible if certain covered electric generating units in the subject states fully operate and optimize existing selective catalytic reduction controls (SCRs) and selective non-catalytic reduction controls (SNCRs) in time for the 2023 ozone season, and install “state-of-the-art NOx combustion controls” in time for the 2024 ozone season. For all of the states except Alabama, Minnesota, and Wisconsin, the emissions budgets assume the installation of SCRs on coal-fired units with a capacity of at least 100 MW (except circulating fluidized bed units), SCRs on oil/steam units with a capacity greater than 100 MW and historical NOx emissions of at least 150 tons per ozone season, and SNCRs on coal-fired units with a capacity less than 100 MW and circulating fluidized bed units, in time for the 2026 ozone season. EPA’s “preset” emissions budgets for the 2023 through 2029 ozone seasons also take into account expected retirements. The final rule gives EPA the authority to increase states’ budgets if “more current data on the composition and utilization of the EGU fleet” allows it to do so. Also, it modifies the Group 3 Trading Program so that, “starting with the 2024 control period, the EPA will annually recalibrate the quantity of accumulated banked allowances under the program to prevent the quantity of allowances carried over from each control period to the next from exceeding the target bank level, which would be … a preset percentage of the sum of the state emissions budgets for each control period[:] … 21 percent for control periods through 2029 and 10.5 percent for control periods in 2030 and later years.” EPA is also setting “backstop daily emissions rates … for coal steam units greater than or equal to 100 MW in covered states.” These backstop rates require increased allowance surrenders for units exceeding “a daily average NOx emissions rate of 0.14 lb/MMBtu” by more than 50 tons per ozone season. For units currently without SCRs, the backstop rates go into effect in “the second control period in which newly installed SCR controls are operational at the unit, but not later than the 2030 control period.”
EPA is also imposing NOx emission limits for certain categories of sources beyond electric generating units in 20 states (Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, and West Virginia), starting with the 2026 ozone season. Of particular interest to this Section, the covered categories of sources include “reciprocating internal combustion in Pipeline Transportation of Natural Gas sources.” The NOx limits are 1.0 g/hp-hr for natural gas-fired four stroke rich burn engines; 1.5 g/hp-hr for natural gas-fired four stroke lean burn engines; and 3.0 g/hp-hr for natural gas-fired two stroke lean burn engines. These non-EGU sources may request extensions (initially for “up to 1 year,” then for “up to 2 more years”) if they are unable to comply with these limits by 2026.
On July 31st, following the Fifth, Sixth, and Eighth Circuits’ issuance of orders staying EPA’s disapproval of the “good neighbor” SIPs for Louisiana, Mississippi, Texas, Arkansas, Missouri, and Kentucky, EPA issued an interim final rule staying the effectiveness of its FIPs for those states.
As with the prior action, dozens of parties filed petitions for review of EPA’s FIPs and moved for stays of EPA’s disapproval pending review:
Section 112 of the Clean Air Act, at 42 U.S.C. § 7412(n)(1)(a), required EPA to study the “reasonably anticipated” public health hazards expected to be caused by hazardous air pollutant (HAP) emissions from electric utility steam generating units, and then to regulate those emissions if EPA concluded doing so was “appropriate and necessary.” In 2000, EPA issued a finding that it was “appropriate and necessary” to regulate HAP emissions from coal- and oil-fired electric generating units. And in 2012, EPA issued the Mercury and Air Toxics Standards (MATS) rule, which set limits on mercury and other HAP emissions from those units.
In 2015, the U.S. Supreme Court issued Michigan v. EPA, 576 U. S. 743 (2015), which held that EPA had erred when it determined that regulating electric generating units’ HAP emissions was “appropriate and necessary” without considering the cost of those regulations. Accordingly, in 2016, the Obama EPA issued a supplemental finding concluding that “the cost of MATS is reasonable” because “the power sector” would be “able to comply with the rule’s requirements while maintaining its ability to [generate, transmit, and distribute] reliable electricity at reasonable cost to consumers.” The supplemental finding included a “formal benefit-cost analysis” that concluded that “the benefits (monetized and non-monetized) of the rule … far outweigh the costs.”
In 2020, the Trump Administration reconsidered and rescinded the “appropriate and necessary” finding but did not rescind the MATS rule itself. The Biden Administration then proposed, in 2022, to reweigh the MATS Rule’s costs and benefits and reaffirm that regulating HAP emissions from electric generating units is “appropriate and necessary.” And on March 6th, EPA issued a final rule in which it formally found that “it remains appropriate and necessary to regulate hazardous air pollutant (HAP) emissions from EGUs after considering cost.” In reaching that conclusion, EPA announced that it had applied a “totality-of-the-circumstances methodology” because “benefits like those associated with reduction of HAP can be difficult to monetize, and this incomplete quantitative characterization of the positive consequences can underestimate the monetary value of net benefits.” EPA did not consider or include co-benefits.
The revised “appropriate and necessary” finding did not amend the MATS rule or alter its implementation. But separately, on April 24th, EPA proposed “to remove the total and individual non-Hg (non-mercury) metals emission limits from MATS”; reduce the fPM (filterable particulate matter) emission standard that existing coal-fired EGUs typically used as a surrogate for compliance with those non-Hg metal standards from 3.0E-02 lb/MMBtu to 1.0E-02 lb/MMBtu; and eliminate the option to use stack tests to demonstrate compliance with that fPM standard, leaving continuous emissions monitoring systems (CEMS) as the only permissible means of demonstrating compliance. EPA further proposed to require existing lignite-fired EGUs to “meet the same Hg emission standard as EGUs firing other types of coal” – 1.2 lb/Tbtu or 1.3E-02 lb/GWh, as opposed to the existing mercury standard for lignite-fired EGUs of 4.0 lb/Tbtu or 4.0E-02 lb/GWh. EPA is proposing that affected EGUs have three years to comply with the new reduced fPM and Hg limits. Additionally, EPA proposed to eliminate one of the two definitions for “startup” in the MATS Rule. Under the current MATS Rule, there are two different definitions of startup:
(1) “the first-ever firing of fuel in a boiler for the purpose of producing electricity, or the firing of fuel in a boiler after a shutdown event for any purpose[,]” ending “when any of the steam from the boiler is used to generate electricity for sale over the grid or for any other purpose”; or
(2) “[t]he period in which operation of an EGU is initiated for any purpose[,]” ending “4 hours after the EGU generates electricity that is sold or used for any other purpose …, or 4 hours after the EGU makes useful thermal energy … for industrial, commercial, heating, or cooling purposes …, whichever is earlier.”
The MATS Rule imposes different work practice standards for operation during startup, depending on which definition of “startup” the owner/operator chooses. In the proposed rule, EPA said “fewer than 10 EGUs” are using the second definition of “startup,” so EPA is proposing to remove it.
On May 23rd, EPA proposed its replacement to the Obama Administration’s Clean Power Plan and the Trump Administration’s Affordable Clean Energy Rule, and to the existing New Source Performance Standards (NSPS) for new fossil-fuel-fired EGUs. The proposal rests on the assertion that “a range of … technologies and approaches to reduce greenhouse gas (GHG) emissions … are available to the power sector … including carbon capture and sequestration/storage [CCS] and co-firing with lower-GHG fuels” (specifically, low-GHG hydrogen), and that Congress has made these technologies “cost-effective” through the tax credits included in its recent massive spending bills. EPA asserts that selecting “add-on controls and clean fuels” as BSER is consistent with the types of technologies it has traditionally selected as BSER in prior Section 111 rulemakings. EPA further asserts that it is legally permitted to find that a control technology like CCS is “adequately demonstrated” even if the technology is relatively new and not yet in widespread commercial use. In particular, EPA asserts that it “may reasonably project the development of a control system at a future time and establish requirements that take effect at that time.” On a related note, EPA asserts that it is permitted to impose standards of performance under Section 111(b) that “apply in multiple phases.” Thus, many of its proposed NSPS would impose an initial standard based on use of lower-emitting fuels or highly efficient generation, and then require, in addition, co-firing of low-GHG hydrogen or CCS later (2032 or 2035).
For fossil-fuel-fired steam generating units that undertake a large modification, EPA proposed 90% CCS as BSER, with an 88.4% reduction in emission rate as the standard of performance. For new and reconstructed sources, the BSERs and standards vary depending on the units’ load factors. Additionally, for baseload units, EPA proposes to allow owners/operators to choose between a “CCS Pathway” and a “Co-Firing Pathway” to compliance, each with different standards and deadlines. EPA selected the following phased BSERs and standards of performance (purple-shaded rows represent possible additional phases for which EPA is requesting comment):
| EGU Category and Subcategories | Phase | BSER | Compliance Deadline | Standard of Performance |
| Low-load (peaking) Units (capacity factor < 20%) |
First | Use of lower-emitting or “uniform” fuels (e.g., natural gas and distillate oil) | Upon the later of startup or the final rule’s effective date | 120 - 160 lb CO2 / MMBtu, depending on the fuel |
| Second? | Highly efficient generation and co-firing 30% low-greenhouse-gas (GHG) H2 (by volume) | 2032 | ||
| Intermediate Load Units (capacity factor > 20% and < site-specific value based on design efficiency) |
First | Highly efficient generation (i.e., “use of high-efficiency simple cycle turbine technology [plus] the best operating and maintenance activities”) | Upon the later of startup or the final rule’s effective date | 1,150 lb CO2 / MWh-gross for natural-gas-fired EGUs |
| Second | Highly efficient generation and co-firing (30% by volume or 12% by heat input) low-GHG H2 | 2032 | 1,000 lb CO2 / MWh-gross | |
| Third? | Highly efficient generation and co-firing 96% (by volume) low-GHG H2 | 2038 | 140 lb CO2 / MWh-gross | |
| Base Load Units Natural-gas-fired EGUs with a nameplate heat input > 2,000 MMBtu/hr Natural-gas-fired EGUs with a nameplate base load rating between 250 and 2000 MMBtu/hr: |
First | Highly efficient generation (i.e., “use of high-efficiency combined cycle turbine technology [plus] the best [O&M] activities”) | Upon the later of startup or the final rule’s effective date | 770 lb CO2 / MWh-gross Between 770 and 900 lb CO2 / MWh-gross (based on base load rating) |
| Second CCS Pathway |
Highly efficient generation and 90% carbon capture and storage (CCS) | 2035 | 90 lb CO2 / MWh-gross | |
| Second Co-firing Pathway |
Highly efficient generation and co-firing 30% low-GHG hydrogen (by volume) | 2032 | 680 lb CO2 / MWh-gross | |
| Third Co-firing Pathway |
Highly efficient generation and co-firing 96% low-GHG hydrogen (by volume) | 2038 | 90 lb CO2 / MWh-gross |
The BSERs and presumptive performance standards for existing coal-fired steam generating units depend on when the units’ owners/operators plan to cease operations:
| End of Operations | BSER | Standard of Performance |
| January 1, 2032 | Routine maintenance | No increase in emissions |
| January 1, 2034 | Routine maintenance and limiting annual capacity factor to < 20% | No increase in emissions |
| January 1, 2040 | Natural gas co-firing at 40% of annual heat input | 16% reduction in emission rate |
| After January 1, 2040 | 90% CCS | 88.4% reduction in emission rate |
The BSERs for existing natural gas- and oil-fired steam generating units are routine maintenance, with varying standards of performance based on annual capacity factor (1,500 lb CO2 /MWh-gross for intermediate load units, and 1,300 lb CO2 /MWh-gross for base-load units). And for existing baseload fossil-fuel-fired stationary combustion turbines over 300 MW, with annual capacity factors over 50%, EPA would set different presumptive standards of performance based on whether the unit chose CCS or co-firing low-GHG hydrogen, with different compliance deadlines for both options:
| BSER | Compliance Deadline | Standard of Performance |
| 90% CCS | 2035 | 90 lb CO2 / MWh-gross |
| Co-firing 30% clean H2 (by volume) AND Co-firing 96% clean H2 (by volume) |
2032 2038 |
680 lb CO2 / MWh-gross 90 lb CO2 / MWh-gross |
EPA plans to finalize this rulemaking in April 2024.
In 2020, EPA released a final rule revising the effluent limitations guidelines for two waste streams commonly produced by coal-fired steam electric plants: bottom ash transport water and flue gas desulfurization (FGD) water.
For indirect dischargers (discharges to publicly owned treatment works), the rule set pretreatment standards (PSES) identical to the BAT limitations (except for TSS), which indirect dischargers must meet by October 13, 2023. For direct discharges, where the rule’s BAT limitations were more stringent than a particular source’s previous Best Practicable Control Technology Currently Available (BPT) limitations, local permitting authorities were generally required to set deadlines for compliance no earlier than October 13, 2021, and no later than December 31, 2025. Compliance with the BAT limits for the high flow and low utilization subcategories is generally required by December 31, 2023. Under the rule’s “Voluntary Incentives Program,” however, plants that agree to “achieve more stringent limitations on mercury, arsenic, selenium, nitrate/ nitrite, bromide, and TSS in FGD wastewater” that are “based on membrane filtration preceded by pretreatment” have until December 31, 2028, to meet the new requirements.
Units that intended to take advantage of the alternative limits for low utilization electric generating units or for units that will permanently stop firing coal by 2028 were required to submit a “Notice of Planned Participation” (NOPP) to their permitting authorities or control authorities by October 13, 2021. In November 2021, the Associated Press reported that “at least 26 plants in 14 states” had told state regulators that “they will stop burning coal,” with 21 of those planning to close and the remainder planing to convert to natural gas. On March 29th, EPA released a direct final rule that extended the deadline to submit NOPPs to June 27th, to give additional facilities the opportunity to submit NOPPs.
Various environmental organizations filed petitions for review of the Steam Electric Reconsideration Rule in the United States Courts of Appeals for the Fourth Circuit and for the D.C. Circuit. These were consolidated in the Fourth Circuit (Appalachian Voices v. EPA, No. 20-2187). The case was placed in abeyance in March 2021 to allow the new Biden Administration to review the rule. And it remains in abeyance, pending completion of the proposed rule discussed below.
On March 8th, EPA announced that it was proposing more stringent effluent limitations guidelines for coal-fired steam electric plants. The proposed rule (Docket ID No. EPA-HQ-OW-2009-0819), which was published on March 29th, offers several options for comment. But the “preferred option” would impose as BAT limitations “[a] zero-discharge limitation for all pollutants in FGD and BA [bottom ash] transport water”, based on “chemical precipitation followed by membrane filtration with 100 percent recycle of the permeate” as BAT for FGD wastewater and “dry handling or closed-loop systems” as BAT for BA transport water. The proposed rule would also impose “[n]umeric (non-zero) discharge limitations for mercury and arsenic in CRL [combustion residual leachate]” based on chemical precipitation treatment as BAT. For legacy wastewater, EPA would allow permitting authorities to develop site-specific limitations based on their best professional judgment (BPJ). And the PSES for indirect charges from existing sources would be the same as the BAT limitations. The proposed rule would eliminate the alternative limits for the high flow and low utilization subcategories. It would maintain the alternative limits for electric generating units that will permanently stop firing coal by 2028, however, and add a new subcategory for “facilities that have already complied with either the 2015 or 2010 [effluent limitations guidelines]” and will “retire by 2032.” EPA currently plans to issue a final rule in April 2024.
In June 2016, the San Joaquin Valley Air Pollution Control District submitted a petition to EPA’s Administrator, asking EPA to “establish new national standards for heavy duty trucks and [in-use] locomotives” for NOx emissions to help the San Joaquin Valley meet the PM2.5 and ozone NAAQS. In particular, the District suggested that EPA promulgate “a new Tier 5 emissions standard for [in-use] locomotives” and also require existing locomotives to comply with the Tier 4 90% NOx control requirements for new locomotives. The California Air Pollution Control Officers Association joined that petition in December 2016. And in April 2017, the California Air Resources Board (CARB) submitted its own petition, proposing a Tier 5 standard for new locomotives and locomotive engines (starting in 2025) that would require “99 percent control of [NOx] and diesel [PM], 98 percent control of hydrocarbons, and 10-25 percent control of GHGs [greenhouse gases].” CARB further suggested requiring “zero-emission rail operation in sensitive areas” through the use of “on-board batteries.”
In November 2022, Joe Goffman, then the acting Assistant Administrator for EPA’s Office of Air and Radiation, responded to those petitions. The response stated that EPA had “formed a team to evaluate how best to address air pollutant emissions from the locomotive sector.” It also stated that EPA was “reconsider[ing its] existing locomotive preemption regulations” to determine whether California and other states should have greater authority to restrict locomotive emissions. And on April 27th, EPA when issued a proposed rule to establish greenhouse gas standards for heavy-duty highway vehicles for model years 2028 through 2032, it also “address[ed] preemption of state regulation of new locomotives and new engines used in locomotives.”
Clean Air Act § 209(e)(1)(B), 42 U.S.C. § 7543(e)(1)(B), prohibits any “State or any political subdivision thereof” from adopting or attempting to enforce any “requirement relating to the control of emissions from … [n]ew locomotives or new engines used in locomotives.” However, § 209(e) does allow California to adopt emission standards or requirements for other “nonroad vehicles or engines” – for example, locomotives and engines that are not new – if certain requirements are met. Those standards include that California must “determine[ ] that [its] standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards,” and that EPA’s Administrator must find that California needs its own “standards to meet compelling and extraordinary conditions … .” And after California has adopted such standards, other states with approved Nonattainment New Source Review (NNSR) programs may adopt “identical” standards. However, the regulation that EPA adopted in 1998 to implement Clean Air Act § 209(e), 40 C.F.R. § 1074.12, goes further than the statute. Rather than simply prohibiting local emission standards for new locomotives and locomotive engines, paragraph (b) of the rule also prohibits “emission standards, mandatory fleet average standards, certification requirements, retrofit and aftermarket equipment requirements, and nonfederal in-use testing requirements” for non-new locomotives and locomotive engines up to “133 percent of the useful life” of the locomotive or engine.
In the April 27th proposed rulemaking, EPA explained that states with NNSR programs had “expressed interest in obtaining greater emissions reductions from this sector, including possibly adopting programs to achieve greater emission reductions from non-new locomotives [than are required by] EPA’s standards applicable to new locomotives.” Accordingly, EPA is proposing amendments to its regulations to allow California to “request authorization from the Administrator to enforce” emission standards for non-new locomotives and engines. Comments on the rulemaking were accepted through June 16th.
The National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.) declares, at § 4331, that “it is the continuing policy of the Federal Government ... to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” It instructs “the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans ... to the end that the Nation may ... fulfill the responsibilities of each generation as trustee of the environment for succeeding generations ... .” And, at § 4332, it requires all federal agencies to “insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations,” and to take into account environmental impacts and possible alternatives when recommending or commenting on legislative proposals or “other major Federal actions significantly affecting the quality of the human environment ... .”
In 2020, under the Trump Administration, the Council on Environmental Quality (CEQ) finalized extensive changes to the NEPA rules that CEQ said would “simplify[ ] and clarify[ ] the requirements” and reduce “excessive paperwork, litigation, and delays.” In 2021, under the Biden Administration, the CEQ proposed to begin “restor[ing] [the] regulatory provisions that were in effect for decades before being modified in 2020.” CEQ finalized that “Phase I” rulemaking in 2022. The “Phase 1” rulemaking, which went into effect in May 2022, reverted 40 C.F.R. § 1502.13 (relating to the “purpose and need” section of the environmental impact statements (EISs) that federal agencies prepare for major federal actions) and 40 C.F.R. § 1507.3 (relating to the requirements for agency NEPA procedures) to their pre-2020 versions. For the definitions of “effects or impacts” in 40 C.F.R. § 1508.1(g), the “Phase 1” rulemaking reversed most of the Trump CEQ’s changes, but retained the portion of the definition that limited “effects or impacts” to “changes to the human environment from the proposed action or alternatives that are reasonably foreseeable … .”
On June 3rd, President Biden signed into law Public Law 118-5, the Fiscal Responsibility Act of 2023. Title III included several amendments to streamline NEPA review, some of which echoed the Trump Administration’s amendments to the NEPA rules. Amendments to NEPA included the following:
The bill received bipartisan support, with 149 Republicans and 165 Democrats supporting it in the House of Representatives, including Speaker McCarthy (R-CA) and 17 Republicans, 44 Democrats, and 2 Independents (including Senators Schumer (D-NY) and McConnell (R-KY)) supporting it in the Senate.
On July 31st, the CEQ proposed a “Phase 2” rulemaking,” which it called the “Bipartisan Permitting Reform Implementation Rule.” Per the name, the proposal includes amendments to implement the statutory amendments in the Fiscal Responsibility Act of 2023, along with amendments to undo more (but not all) of the Trump Administration’s changes to the NEPA rules. It also includes amendments “to enhance consistency and provide clarity to improve the efficiency and effectiveness of the environmental review process.” Among numerous changes, the amendments would restore 40 C.F.R. § 1500.2, which set out the policies underlying NEPA, albeit with new text to address environmental justice. It would eliminate the exhaustion and remedies subparagraphs in § 1500.3 that were added in 2020. In § 1501.3(d), it would require agencies to “examine both the context of an action and the intensity of the effects” in determining whether those effects “are significant.” It identifies the “contexts” that should be considered, including “the characteristics of the relevant geographic area, such as proximity to unique or sensitive resources or vulnerable communities” and, for some actions, “the potential global, national, regional, and local contexts as well as the duration, including short- and long-term effects.” With regard to “intensity,” the proposed rule amendments would instruct agencies that “[a] significant adverse effect may exist even if … on balance the effects of the action will be beneficial.” The rule would also instruct that agencies should consider the extent to which “the potential effects on the human environment are highly uncertain” and the extent to which the cumulative impacts of the action and other actions is “significant in the aggregate.” In § 1501.4, the amendments would state that categorical exclusions should apply only to “categories of actions that normally do not have a significant effect on the human environment, individually or in the aggregate … .” The amendments would also allow agencies to develop categorical exclusions “through a land use plan, a decision document supported by a programmatic [EIS] or programmatic [EA], or other equivalent planning or programmatic decision,” so long as the agencies meet certain procedural requirements. And in § 1501.9, the proposed rule would add new language regarding “public and governmental engagement,” including notifications. A full red-line of the proposed amendments can be found here. The deadline for submitting comments on the proposed rules (Docket No. CEQ-2023-0003) was September 29th.
On his first day in office, President Biden issued an Executive Order establishing an Interagency Working Group on the Social Cost of Greenhouse Gases to help “agencies to accurately determine the social benefits of reducing greenhouse gas emissions when conducting cost-benefit analyses of regulatory and other actions.” The executive order directed the Interagency Working Group to publish an interim Social Cost of Carbon (SCC), Social Cost of Nitrous Oxide (SCN), and Social Cost of Methane (SCM) (collectively, SC-GHG) within 30 days and final SC-GHG by January 2022. And on February of 2021, the Group announced that it would “replac[e] the previous Administration’s estimates with the estimates developed prior to 2017, adjusted for inflation,” and posted a Technical Supporting Document identifying the new interim estimates.
Several states filed suit in the U.S. District Court for the Eastern District of Missouri (Case No. 4:21-cv-00287), arguing that developing a social cost of greenhouse gases is a policy decision that the Executive Branch lacks the authority to make and that the estimates were arbitrary and capricious. In Missouri v. Biden, 558 F. Supp. 3d 754 (E.D.Mo. 2021), the court dismissed that complaint for lack of subject matter jurisdiction, holding that the states “lack[ed] standing and that their claims are not ripe for adjudication.” The court held that the states were required to wait until a federal agency actually relied on the new social costs in a rulemaking, and then challenge that rulemaking. The states appealed to the U.S. Court of Appeals for the Eighth Circuit (Case No. 21-3013). In October 2022, in Missouri v. Biden, 52 F.4th 362 (8th Cir. 2022), the Eighth Circuit affirmed the District Court’s decision. On June 25th, the states filed a petition for a writ of certiorari in the United States Supreme Court (Case No. 22-1248). The petition remains pending.
A second, more successful challenge to the interim social costs was filed by ten states in the U.S. District Court for the Western District of Louisiana (Case No. 2:21-cv-01074). There, the states filed a motion asking the court to enjoin the federal government from relying on the interim SC-GHG until their legality could be determined. In February 2022, in Louisiana v. Biden, 585 F. Supp. 3d 840 (W.D. La. 2022), that court issued a memorandum ruling that the states had standing to challenge the draft social costs of greenhouse gases and also found that the states’ challenges were likely to succeed on the merits. Accordingly, the court enjoined the entire federal government from relying on the “the work product of the Interagency Working Group” in rulemakings or other actions. The United States moved to stay the preliminary injunction, and the district court denied that motion. However, the United States also appealed the court’s ruling to the U.S. Court of Appeals for the Fifth Circuit (Case No. 22-30087) and moved there for a stay of the district court’s injunction. In March 2022, in State v. Biden, No. 22-30087, 2022 U.S. App. LEXIS 7589 (5th Cir. Mar. 16, 2022), the Fifth Circuit granted that motion. The states that had challenged the interim social costs of greenhouse gases filed a motion for rehearing of the Fifth Circuit en banc, but the court denied the motion, noting that “no member of the panel or judge in regular active service” had indicated support for the rehearing. Then on April 27. 2022, the states filed an application asking the United States Supreme Court to stay the Fifth Circuit order. The Supreme Court denied the application without comment. And on April 5th, in Louisiana v. Biden, 64 F.4th 674 (5th Cir. 2023), the Fifth Circuit dismissed the states’ challenge to the interim SC-GHG, agreeing with the Eighth Circuit that the states lacked standing because their claims “rel[ied] on hypothetical harms.”
Despite the January 2022 deadline that President Biden set in the Executive Order establishing the Interagency Working Group, the Working Group has not yet finalized its SG-GHG. However, EPA developed its own estimates to support its Supplemental Notice of Proposed Rulemaking for the Oil and Gas NSPS, and invited public comment on those estimates in the context of that rulemaking. EPA’s estimated SC-GHG vary from the Interagency Working Group’s interim estimates. For example, the Working Group’s estimated SCC, SCM, and SCN for 2030 (assuming a 2.5% average discount rate) are $89, $2500, and $33,000, while EPA’s estimated SCC, SCM, and SCN for 2030 (assuming a 2.5% discount rate) are $140, $1900, and $45,000. As another example, the Working Group’s estimated SCC, SCM, and SCN for 2050 (assuming a 2.5% average discount rate) are $116, $3800, and $45,000, while EPA’s estimated SCC, SCM, and SCN for 2050 (assuming a 2.5% discount rate) are $200, $3500, and $66,000. It is as yet unknown whether the Interagency Working Group will adopt EPA’s estimates, or whether EPA will adopt the Interagency Working Group’s final estimates for future rulemakings.
As Supreme Court Justice Alito once wrote, the reach of the Clean Water Act is “notoriously unclear.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). It can be difficult for a landowner to understand whether wetlands or a small creek on her parcel, for example, are federal waters that require a Clean Water Act (CWA) permit before the landowner can build a home, develop the property, or cultivate the land. The definition of “waters of the United States” may also affect pipeline projects, as noted in a Congressional Research Service report, because it determines the numbers of waters and wetlands into which discharges of dredged or fill material require permits under CWA Section 404.
In 2020, EPA and the U.S. Army Corps of Engineers published the Navigable Waters Protection Rule in an effort to streamline and clarify the geographic scope of federal CWA jurisdiction. The Navigable Waters Protection Rule was the culmination of the Trump Administration’s efforts to repeal and replace the controversial 2015 Clean Water Rule, which established a broader definition of “waters of the United States” (WOTUS) that are subject to federal CWA jurisdiction. But in 2021, in Pasqua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949 (D. Ariz. 2021), the United States District Court for the District of Arizona issued an order vacating and remanding the Navigable Waters Protection Rule. In response, EPA and the Army Corps of Engineers announced that they would “interpret[ ] ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.”
On January 18th, EPA and the U.S. Army Corps of Engineers finalized “that familiar pre-2015 definition.” As summarized in the rule preamble, that definition of WOTUS included:
See 40 C.F.R. § 120.1 (EPA) and 33 C.F.R. § 328.3 (Army Corps). The rules explained that waters would meet the “relatively permanent” standard if they “are relatively permanent, standing or continuously flowing bodies of water[,]” borrowing language from Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Waters would have a “significant nexus” to WOTUS if they “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of” WOTUS waters, borrowing language from Justice Kennedy’s Rapanos concurrence and the CWA’s statement of purpose (in 33 U.S.C. § 1251(a)). And per the agencies’ longstanding definition, wetlands would be “adjacent” to WOTUS, tributaries, or impoundments if they are “bordering, contiguous, or neighboring” those waters, even if “separated … by … barriers … .”
Not surprisingly, the 2023 WOTUS definition was subject to numerous legal challenges, including Texas v. EPA, No. 3:23-cv-17 (S.D. Tex.), in which Idaho joined the amended complaint, and American Farm Bureau Federation v. EPA, No. 3:23-cv-20 (S.D. Tex.) (consolidated); West Virginia v. EPA, No. 3:23-cv-32 (D. N.D.), in which 24 states challenged the WOTUS definition; and Kentucky v. EPA, No. 3:23-cv-07 (E.D. Ky) and Kentucky Chamber of Commerce v. EPA, No. 3:23-cv-08 (E.D. Ky) (also consolidated). The plaintiffs in these actions all moved for preliminary injunctive relief. On March 19th, the Southern District of Texas granted Texas and Idaho’s motion for a preliminary injunction within those states. On April 12th, the District of North Dakota granted the twenty-four states’ motion for a preliminary injunction in those states as well, pending a decision by the United States Supreme Court in Sackett v. EPA (Case No. 21-454) (see below). On May 9th, the Eastern District of Kentucky denied the plaintiffs’ motion for injunctive relief and dismissed their petition for lack of standing. But on May 10th, the United States Court of Appeals for the Sixth Circuit granted an injunction against the enforcement of the 2023 WOTUS Definition in Kentucky, pending appeal in Kentucky v. EPA, Nos. 23-5343 and 23-53451. The opinion also referenced Sackett, which it said “may have significant effects on the Final [WOTUS] Rule.”
The petitioners in Sackett, Michael and Chantell Sackett, had been before the Court before. In Sackett v. EPA, 566 U.S. 120 (2012), the Court held that the Sacketts could challenge an administrative compliance order that asserted that they had unlawfully discharged fill material into jurisdictional wetlands when they conducted site preparation activities to build a house on property they owned in Idaho. The Sacketts pursued that challenge and, in Sackett v. EPA, No. 2:08-cv-00185-EJL, 2019 U.S. Dist. LEXIS 239377 (Mar. 31, 2019), the U.S. District Court for the District of Idaho ultimately ruled in favor of EPA (see Appendix B-1 in linked document). And the U.S. Court of Appeals for the Ninth Circuit, in Sackett v. EPA, 8 F. 4th 1075 (9th Cir. 2021), affirmed. In doing so, the court applied the “significant nexus” test set out in Kennedy’s concurring opinion in Rapanos. The Ninth Circuit found that “the wetlands on the Sacketts’ property” were waters of the United States because they “are adjacent to a jurisdictional tributary and … together with the similarly situated Kalispell Bay Fen, … have a significant nexus to Priest Lake, a traditional navigable water[,]” in that they “significantly affect the integrity of Priest Lake.” The Sacketts, in contrast, had argued that the Ninth Circuit should apply the test in Scalia’s plurality opinion from Rapanos. The Supreme Court granted certiorari to determine whether the Ninth Circuit applied the proper test.
On May 25th, the Supreme Court issued its opinion in Sackett v. EPA, 598 U.S. ___. 143 S. Ct. 1322, 215 L.Ed.2d 579 (2023). The majority opinion, written by Justice Alito, reversed the Ninth Circuit and held that the Sackett’s wetlands were distinguishable from any covered waters. More importantly, the majority asserted that Scalia’s “continuous surface connection” standard from Rapanos was the proper standard for defining WOTUS. In reaching this conclusion, the Court held that the “continuous surface connection” standard follows from the CWA’s “deliberate use of the plural term ‘waters,’” which would be “hard to reconcile” with classifying lands as “waters”; aligns the meaning of WOTUS with the term it is defining, “navigable waters,” which “principally refers to navigable waters like rivers, lakes, and oceans”; and accords with how the term “waters” has been employed elsewhere in the CWA and other laws. In sum, the Court held that the CWA extends only to those wetlands that are “as a practical matter indistinguishable from [WOTUS].” Thus, to establish jurisdiction over wetlands, the asserting party is required to establish: (1) that an adjacent body of water constitutes WOTUS, meaning it is a “relatively permanent body of water connected to traditional interstate navigable waters,” and (2) that the wetland has a “continuous surface connection with that water,” which makes it difficult to determine where the water ends and the wetland begins. In so holding, the Court explicitly rejected the “significant nexus” standard described in Kennedy’s concurrence in Rapanos and included in the 2023 definition of WOTUS. Alito wrote that the “significant nexus” standard was “inconsistent with the text and structure of the CWA” and “clashes with ‘background principles of construction.’” Opinions written by Justice Kavanaugh and Justice Kagan, concurring in judgment only, argued that the majority’s standard was too narrow and conflated the CWA’s term “adjacent” to mean “adjoining.” Notably, however, neither opinion argued in favor of retaining the “significant nexus” standard. Justice Thomas also wrote a concurring opinion, joining the majority’s opinion in full, but arguing that the majority ended its analysis too early, failing to determine the extent to which the terms “navigable” and “of the United States” curb the extent of the CWA’s reach.
Following the decision, on August 29th, EPA and the U.S. Army Corps of Engineers announced a final rule (published in the Federal Register on September 8th) amending the 2023 WOTUS definition to align with the Court’s decision. The amendments are limited to changing those portions of the WOTUS that the Supreme Court invalidated, namely, removing the “significant nexus” test and revising the definition of “adjacent.” The U.S. Army Corps of Engineers has also resumed issuing approved jurisdictional determinations that were paused pending the Sackett decision.
