Aviation
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 statutory authority to issue standards for greenhouse gas and particulate matter emissions from aircraft engines, and has also proposed to find that lead emissions from aircraft engines endanger public health or welfare, as discussed below.
Greenhouse Gas Emissions
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[ ].”
Days after those standards were finalized, three environmental groups (Center for Biological Diversity, Friends of the Earth, and Sierra Club) filed a petition for review of that final action in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) (Case No. 21-1021), arguing that the 2016 ICAO’s standards were “outdated” and that airplanes were expected to meet those standards even without the EPA rule. Twelve states and the District of Columbia filed a separate petition for review (Case No. 21-1018), which was consolidated with the first.
After the Biden Administration came into office, the D.C. Circuit agreed to hold those petitions in abeyance while the new Administration reviewed the rule. In November 2021, the Biden Administration informed the D.C. Circuit that it did not “plan[ ] to commence a reconsideration proceeding or new rulemaking pertaining to the Airplane Rule.” Accordingly, the court returned the consolidated cases to the court’s active docket and set a briefing schedule. Oral argument was held on October 6, 2022. The court has not yet issued an opinion.
Particulate Matter Emissions
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.
Lead Emissions
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.
Electricity
Air Emissions Generally
On February 24th, EPA released information on the nitrogen oxides (NOx), sulfur dioxide (SO2), carbon dioxide (CO2), and mercury emitted last year from power plants in the United States (excluding Alaska and Hawaii). Emissions in all categories were lower than in 2021, which EPA attributed to a continued shift away from coal-fired generation and towards natural-gas-fired generation. In particular, EPA noted “a 6% decrease in coal generation and a 7% increase in natural gas generation from 2021.” Additionally, EPA reported approximately 90% reductions in SO2 and NOx emissions from power plants since 1990, and decreases of 22% in power plants’ CO2 emissions between 1995 and 2022.
Coal Combustion Residuals Rule
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, and not 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 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.
The “Part A” Rules
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 “Part A” 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 still 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). On January 11, 2022, EPA announced that it was proposing to determine that four of the extension applications were incomplete; to determine that one facility (Greenidge in Dresden, NY) was ineligible for an extension under option (2) (because its boilers were natural gas-fired, not coal-fired); to deny the extensions required by Clifty Creek Power Station (Madison, Indiana), Gavin Power Plant (Cheshire, Ohio), and Ottumwa Generating Station (Ottumwa, Iowa); and to grant the extension request from H.L. Spurlock Power Station (Maysville, Kentucky) with conditions. On July 12, 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. Of these proposed determinations, EPA has finalized only one: the determination for Gavin, which was denied effective November 28, 2022. Eleven 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 for review of EPA’s actions, which have been consolidated as Electric Energy, Inc. v. EPA (Case No. 22-1056).
The “Part B” Rules
Also in November 2020, EPA finalized a rule (referred to as “Part B”) 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 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 would be required to submit an application November 30, 2020 (subsequently extended to December 14, 2020) that demonstrates 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.”
On January 11, 2022, EPA announced that it had received eight applications. Two of them have since been withdrawn. EPA is proposing to deny the remaining applications because it says the facilities’ owners and operators “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. Comments may be submitted through April 10th.
Interstate Transport of Air Pollution
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.
CSAPR Updates for the 2008 Ozone NAAQS
In October 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 December 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 September 2019, the United States Court of Appeals for the D.C. Circuit held in Wisconsin v. EPA (Case No. 16-1406) 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 (Case Nos. 19-1019 et al.), in October 2019, the D.C. Circuit also 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 April 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, 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 relatively brief opinion for the court, written by Judge Childs, rejected the Midwest Ozone Group’s challenges to EPA’s technique for determining downwind impacts, holding that EPA’s methods were “rational[ ]” and had been “appropriately explained” and that the challengers had not shown “that different states would have been regulated differently under any other method … .”
CSAPR Updates for the 2015 Ozone NAAQS
In February, May, and October 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.
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.” 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 had failed to properly evaluate “emissions control opportunities” under Step 3.
In a parallel rulemaking, in April 2022, EPA proposed to issue Federal Implementation Plans (FIPs) for twenty-five states that EPA believes are “significantly contributing to downwind nonattainment or [significantly] interfering with maintenance of the 2015 ozone NAAQS in other states based on projected nitrogen oxides (NOx) emissions in the 2023 ozone season.” On March 15th, EPA released its final rule (not yet published in the Federal Register), which closely resembles the proposed rule. The final rule 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 of … air quality and contribution modeling and analysis … .”
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.”
As in the proposed rule, 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.
Mercury and Air Toxics Standards (MATS) Rule
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.
But in June 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.”
But in May 2020, the Trump Administration reconsidered and rescinded the “appropriate and necessary” finding. The Trump EPA concluded that the Obama EPA’s main finding “did not meaningfully consider cost,” and that the formal benefit-cost analysis was flawed because it gave “equal weight … to the non-HAP co-benefit emission reductions and the HAP-specific benefits of the regulation.” The Trump EPA did not, however, rescind the MATS rule itself.
The Biden Administration then proposed, on February 9, 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.” Like the Obama EPA’s analysis, the Biden EPA weighed “the public health benefits of regulation,” particularly with regard to sensitive and vulnerable populations, against the effects that “compliance costs … [would] have on the economics of power generation more broadly, the reliability of electricity, and the cost of electricity to consumers.” And EPA said that it “found compliance costs are within the range of other expenditures by the power sector and were commensurate with revenues generated, and … would not … have any significant impacts on electricity prices or reliability.” EPA did not consider or include co-benefits in its methodology. Importantly, the revised “appropriate and necessary” finding does not amend the MATS rule or alter its implementation.
Effluent Limitations Guidelines for Steam Electric Plants
The 2020 Guidelines
In October 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 FGD wastewater, the rule generally promulgated effluent limitations for mercury, arsenic, selenium, and nitrate/nitrite as nitrogen based on a determination that the “Best Available Technology Economically Achievable” (BAT) was “a combination of chemical precipitation and low hydraulic residence time biological treatment” (LRTR), including ultrafiltration. For high FGD flow plants (those with FGD wastewater flows over 4 million gallons/day, after accounting for the ability to recycle wastewater) and low utilization electric generating units (those with a capacity utilization rating below 10%), the rule set effluent limitations for mercury and arsenic based on chemical precipitation as BAT. And for electric generating units that will permanently stop firing coal by 2028, the rule set “limitations for total suspended solids (TSS) in FGD wastewater” based on surface impoundments as BAT.
For bottom ash transport water, the rule generally established BAT as “a high recycle rate system [(HRR)] with a site-specific volumetric purge … which cannot exceed 10 percent of the bottom ash transport water system’s volume … .” For low utilization electric generating units, the rule set “BAT limitations for [bottom ash] transport water for total suspended solids (TSS)” based on surface impoundments as BAT and required implementation of a best management practices (BMP) plan. And for electric generating units that will permanently stop firing coal by 2028, the rule again set numeric TSS limitations based on surface impoundments as BAT.
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 8th, EPA released a direct final rule (not yet published in the Federal Register) that will extend the deadline to submit NOPPs to mid-2023, 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. In August 2021, EPA published a notice that it had “decided to initiate a notice-and-comment rulemaking in which the Agency will determine whether more stringent limitations and standards are appropriate” and “intends to sign the notice of proposed rulemaking … in the Fall of 2022.”
The 2023 Proposed Guidelines
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 has not yet been published in the Federal Register, 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.”
The notice acknowledges the need to reduce emissions from the electricity generation sector to meet the Biden Administration’s greenhouse gas reduction goals, but insists that the proposal “was motivated by the [Clean Water Act] and by the need to address water pollution.”
Locomotives
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.”
On November 9, 2022, Joe Goffman, Principal Deputy Assistant Administrator (and 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. However, the Fall 2022 Unified Agenda of Regulatory and Deregulatory Actions for EPA does not list any locomotive-related regulatory actions.
Infrastructure Generally
National Environmental Policy Act
Amendments to the NEPA Rules
The National Environmental Policy Act (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 July 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 October 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 April 2022. The “Phase 1” rulemaking, which went into effect in May 2022, focused on three specific changes:
- The first change related to the “purpose and need” section of the environmental impact statements (EISs) that federal agencies prepare for major federal actions. Before the 2020 amendments, 40 C.F.R. § 1502.13 stated that an EIS “shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” The Trump CEQ added a sentence that stated, “When an agency's statutory duty is to review an application for authorization, the agency shall base the purpose and need on the goals of the applicant and the agency's authority.” The “Phase 1” amendments reverted to the prior language, to make clear that “agencies … have discretion to base the purpose and need for their actions on a variety of factors, which include the goals of the applicant, but not to the exclusion of other factors.”
- The second change relates to the requirements for agency NEPA procedures in 40 C.F.R. § 1507.3. The Trump CEQ amended the rule to state that the NEPA implementing regulations would generally control if there were inconsistencies between them and agencies’ NEPA procedures, and that agencies would have until September 2023 to make their procedures consistent with NEPA’s implementing regulations. The Biden CEQ removed this language, to give agencies “flexibility to develop or revise [NEPA] procedures … that may go beyond the CEQ regulatory requirements.” Agencies will still have until September 14, 2023, “to propose changes to their existing agency-specific NEPA procedures to make them consistent with the current CEQ regulations.”
- The third change relates to the definitions of “effects or impacts” in 40 C.F.R. § 1508.1(g). The Trump CEQ removed the definition of “cumulative impact” from the rules, along with references to “direct” and “indirect” effects. Instead, the amended rule directed agencies to focus on “changes … that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” The “Phase 1” rulemaking reversed most of those changes, making clear that the terms “effects” and “impacts” include “direct effects,” “indirect effects,” and “cumulative effects” and adding definitions of all three terms. However, the final rule 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 … .”
The CEQ indicated its intent to propose a “Phase 2” rulemaking with more comprehensive changes in August 2022, and then in January 2023, but has yet to issue that proposed rule.
On January 9th, the CEQ issued interim guidance on analyzing the GHG and “climate change effects of their proposed actions” under NEPA. The interim guidance directs agencies to:
“ (1) Quantify the reasonably foreseeable GHG emissions [increases and reductions] (including direct and indirect emissions) of a proposed action, the no action alternative, and any reasonable alternatives … .
(2) Disclose and provide context for the GHG emissions and climate impacts associated with a proposed action and alternatives, including by, as relevant, monetizing climate damages using estimates of the SC-GHG [social cost of greenhouse gases, discussed below], [and] placing emissions in the context of relevant climate action goals and commitments, … .
(3) Analyze reasonable alternatives, including those that would reduce GHG emissions relative to baseline conditions, and identify available mitigation measures to avoid, minimize, or compensate for climate effects.”
The guidance notes, however, that NEPA does not “require the decision maker to select the alternative with the lowest net GHG emissions or climate costs or the greatest net climate benefits”; it simply requires them to make informed decisions. CEQ is accepting comments on the interim guidance (Docket ID No. CEQ-2022-0005) through April 10th.
Social Cost of Greenhouse Gases
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. 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). On October 21, 2022, the Eighth Circuit issued an opinion affirming the District Court’s decision. On December 4, 2022, the states filed a petition for en banc rehearing and rehearing by the panel. The Eighth Circuit denied the petitions for rehearing on January 27th.
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 SCC, SCN, and SCM until their legality could be determined. On February 11, 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. On March 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. The appeal to the Fifth Circuit was briefed and oral argument was held on December 7, 2022, before Judges Wiener, Higginson, and Wilson.
Despite the January 2022 deadline that President Biden set in the Executive Order establishing the Interagency Working Group on the Social Cost of Greenhouse Gases, 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 (discussed supra), 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.
“Waters of the United States”
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 his or her parcel, for example, are federal waters that require a Clean Water Act (CWA) permit before the landowner can begin work to 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 April 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 on August 30, 2021, in Pasqua Yaqui Tribe v. EPA (Case No. CV-20-00266), 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.”
Subsequently, on December 7, 2021, EPA and the Army Corps of Engineers formally proposed to re-establish the pre-2015 definition of “waters of the United States.” And on January 18th, EPA and the U.S. Army Corps of Engineers finalized “that familiar pre-2015 definition,” effective March 20th. As summarized in the rule preamble, this definition of WOTUS includes:
- Paragraph (a)(1): “traditional navigable waters, the territorial seas, and interstate waters”;
- Paragraph (a)(2): “impoundments of ‘waters of the United States’”;
- Tributaries to the first two WOTUS categories that “meet either the relatively permanent standard or the significant nexus standard”;
- Wetlands that are:
- adjacent to paragraph (a)(1) waters”;
- “adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments”;
- “adjacent to tributaries that meet the relatively permanent standard”; or
- “adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries” and that “meet the significant nexus standard”;
- Other “intrastate lakes and ponds, streams, or wetlands … that meet either the relatively permanent standard or the significant nexus standard”;
See 40 C.F.R. § 120.1 (EPA) and 33 C.F.R. § 328.3 (Army Corps). The rules explain that waters 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 (U.S. 2006). And waters 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 concurrence in Rapanos and the Clean Water Act’s statement of purpose (in 33 U.S.C. § 1251(a)). EPA defended the use of both standards, stating that the “relatively permanent standard is administratively useful[,] as it more readily identifies a subset of waters that will virtually always significantly affect paragraph (a)(1) waters,” but “it is the significant nexus standard that advances the objective of the Clean Water Act because it is linked to effects on the water quality of paragraph (a)(1) waters … .” And per the agencies’ longstanding definition, wetlands are “adjacent” to WOTUS, tributaries, or impoundments if they are “bordering, contiguous, or neighboring” those waters, even if “separated … by … barriers … .”
The regulatory text also explicitly excludes several types of waters from the definition of WOTUS:
- “Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act”;
- “Prior converted cropland designated by the Secretary of Agriculture”;
- “Ditches … excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water”;
- “Artificially irrigated areas that would revert to dry land if irrigation ceased”;
- “Artificial lakes or ponds … used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing”;
- “Artificial reflecting or swimming pools or other small ornamental bodies of water created … for primarily aesthetic reasons”;
- “Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel … until the construction or excavation operation is abandoned …”; and
- “Swales and erosional features … characterized by low volume, infrequent, or short duration flow.”
Not surprisingly, the 2023 WOTUS definition has been 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 are challenging 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 the Texas, North Dakota, and Kentucky federal court actions all filed motions for preliminary injunctive relief. On March 19th, the Southern District of Texas granted Texas and Idaho’s motion for a preliminary injunction with those states.
However, these courts may never get a chance to review the 2023 WOTUS definition on the merits, because the United States Supreme Court is also taking up the definition of WOTUS once again. On January 24, 2022, the Court granted certiorari in Sackett v. EPA (Case No. 21-454). The petitioners, Michael and Chantell Sackett, have 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. In that challenge, Sackett v. EPA (Case No. 2:08-cv-00185), the U.S. District Court for the District of Idaho ultimately ruled in favor of EPA in March 2019. The U.S. Court of Appeals for the Ninth Circuit, in Sackett v. EPA (Case No. 19-35469), affirmed in August of 2021. In doing so, the court applied the “significant nexus” test set out in Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006). 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 Justice Scalia’s plurality opinion from Rapanos. The Supreme Court granted certiorari to determine whether the Ninth Circuit applied the proper test. Oral argument was held on October 3, 2022, but the Court has not yet issued a ruling.
