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    Environmental Law Spring 2024 Report

    Eric Benjamin Gallon, Kyle Chandler Gilliam, Kristy A Bulleit, Conrad Bolston, Kerry L McGrath, and Brian Levey

    May 15, 2024

    35 min read

    Electricity Energy Environment Federal Agencies Oil and Gas Railroads Regulation State Regulatory Transportation Water

    Summary

    • In July 2018, the U.S. Environmental Protection Agency (EPA) finalized amendments to the 2015 CCR Rule.
    • 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.”
    • In 2020, the EPA and the U.S. Army Corps of Engineers published the Navigable Waters Protection Rule to streamline and clarify the scope of federal Clean Water Act jurisdiction.
    Environmental Law Spring 2024 Report
    stanley45 via Getty Images

    Introduction

    The Committee on Environmental Law’s report for Spring 2024 summarizes key environmental law developments at the United States Environmental Protection Agency (EPA) and in the federal courts between September 2023 and March 2024, with a particular focus on developments of interest to the aviation, electric, and locomotive industries and to infrastructure projects more generally. You’ll find hyperlinks to relevant articles, rulemakings, statutes, regulations, and other documents throughout the report. Quotes are taken from the nearest hyperlinked source unless otherwise stated or indicated. Dates are from this year unless otherwise stated. We hope you will find the information in this report useful.

    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 authority to issue standards for greenhouse gas and particulate matter (PM) emissions from aircraft engines.

    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 stated 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 stated that monitoring and modeling suggest such lead emissions may be contributing to exceedances of the lead NAAQS around some airports in the United States. On October 20, 2023, EPA finalized that action. EPA will next propose lead emission standards.

    Electricity

    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 (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.

    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 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). 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, the court held oral arguments for the two proceedings on March 7th before the same panel of judges.

    On February 6th, EPA announced that it had reached a settlement with Greenidge that requires the company to “assess groundwater contamination from the coal ash impoundment at its facility”; “design and implement a corrective action program to address [any] contamination” found; “update and implement a closure plan for the coal ash impoundment”; and “pay a fine of $105,000.”

    The “Part B” Rules

    In November 2020, EPA also finalized its “Part B” rule, which 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 allowed 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 required a two-step process. Initially, a facility was required to submit an application that demonstrated the unit met 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,” 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 were withdrawn before the end of January 2023. In January 2023, EPA proposed to deny the remaining applications, because it said the facilities “fail[ed] to demonstrate that the surface impoundments complied with the [location or monitoring] requirements of the CCR regulations” and because there was “[e]vidence of potential releases” from some impoundments. As of February 29th, another two of the applications have been withdrawn. EPA still has not finalized any of the proposed denials.

    Legacy Impoundments and CCR Management Units

    On May 18, 2023, EPA proposed regulations to respond to the portion of the 2018 Utility Solid Waste Activities Group ruling that struck down the 2015 CCR Rule’s exemption of “legacy ponds.” Under the proposed rule, “legacy CCR surface impoundments” (“inactive surface impoundments at inactive facilities”) would be subject to 40 C.F.R. Part 257, Subpart D, and would have to “comply with all the appropriate requirements applicable to inactive CCR surface impoundments at active facilities” (emphasis added), including “groundwater monitoring and corrective action.” They would also have to comply with two new requirements: (1) a requirement “to prepare an applicability documentation” documenting each impoundment’s location, size, boundaries, site conditions, and proximity to surface water (or complete a closure certification); and (2) a requirement to develop a site security plan to “prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the legacy cCR surface impoundment.” For most legacy CCR surface impoundments, some requirements would go into effect on the final rule’s effective date, such as the requirements to prepare applicability documentation; to place a permanent, six-foot-high identification marker on or adjacent to the CCR unit; to prepare a fugitive dust plan; and to develop a site security plan. Other requirements, such as the requirements to compile construction histories and complete initial hazard potential classification assessments, structural stability and safety factor assessments, and initial annual inspections, would be required within 3 months of the final rule’s effective date. Yet other requirements would go into effect 6 months (e.g., installing a groundwater monitoring system and developing a groundwater sampling and analysis program), 9 months (preparing an initial inflow design flood control system plan), 12 months (preparing closure plans and post-closure care plans and initiating closure), or 24 months after the rule’s effective date (complying with certain groundwater monitoring requirements). Legacy CCR surface impoundments would be required to complete closure within five years after initiating closure.

    The proposed rulemaking also imposes requirements on what EPA calls “CCR management units,” which it defines as “any area of land on which any non- containerized accumulation of CCR is received, placed, or otherwise managed at any time, that is not a CCR unit,” such as “inactive CCR landfills and CCR units that closed prior to October 17, 2015.” The definition would also include “other areas where CCR is managed directly on the land.” “[O]wners and operators of active or inactive facilities with one or more CCR unit(s)” would be required to “initiate a facility evaluation to identify all CCR management units at the facility” and confirm and document their “presence or absence.” They would be required to produce a Facility Evaluation Report within three months after the final rule’s effective date. Other, existing CCR requirements would apply to CCR management units, on a similar schedule as the requirements for legacy CCR surface impoundments: 6 months (installing a groundwater monitoring system and developing a groundwater sampling and analysis program), 12 months (preparing closure plans and post-closure care plans and initiating closure), or 24 months after the rule’s effective date (complying with certain groundwater monitoring requirements). And CCR management units, too, would be required to complete closure within five years after initiating closure.

    On November 14, 2023, EPA announced “the availability of new information and data” relating to its proposed rulemaking and reopened the comment period until December 11, 2023.

    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. This is known as the “Good Neighbor” provision of the Clean Air Act.

    Disapproval of State Implementation Plans

    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. In 2023, 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 had applied 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:

    • Fifth Circuit: The states of Louisiana, Mississippi, and Texas challenged the disapproval of their states’ “good neighbor” SIPs along with dozens of other organizations (Case No. 23-60069). The court denied a motion by EPA to transfer the petition to the D.C. Circuit and granted motions to stay EPA’s disapproval of Texas and Louisiana’s SIPs and Mississippi’s SIP. Briefing is complete and the court heard oral argument on December 4, 2023.
    • Sixth Circuit: The Commonwealth of Kentucky and Kentucky Energy and Environment Cabinet challenged the disapproval of its state’s “good neighbor” SIP (now consolidated under Case No. 23-3225). Last July, the court denied EPA’s motion to transfer the petition to the D.C. Circuit and granted the petitioners’ motion to stay EPA’s disapproval of Kentucky’s SIP. Briefing is complete and the court has scheduled oral argument for May 8, 2024.
    • Eighth Circuit: The states of Arkansas (Case No. 23-1320) and Missouri (Case No. 23-1719), the Southern Minnesota Municipal Power Agency (Case No. 23-1776), and other organizations challenged the disapproval of the Arkansas, Missouri, and Minnesota “good neighbor” SIPs. In 2023, the court denied EPA’s motion to transfer the petitions to the D.C. Circuit and granted the petitioners’ motion to stay EPA’s disapproval of Arkansas’s SIP. Similar rulings were issued in the Minnesota and Missouri proceedings. Oral argument has not yet been scheduled.
    • Ninth Circuit: The state of Nevada and another organization challenged the disapproval of Nevada’s “good neighbor” SIP (Case No. 23-682). The court referred EPA’s motion to transfer the petition to the D.C. Circuit to the panel hearing the petition on the merits and granted petitioners’ motion to stay EPA’s disapproval of Nevada’s SIP. On December 6, 2023, the court issued an order “clos[ing] this court’s docket for administrative purposes until March 5, 2024” pending mediation.
    • Tenth Circuit: The states of Utah (Case No. 23-9509), Oklahoma (Case No. 23-9514), and Wyoming (23-9529), along with approximately a dozen other organizations, challenged the disapproval of their states’ “good neighbor” SIPs. Last July, the court granted petitioners’ motion to stay EPA’s disapproval of Oklahoma and Utah’s SIPs. And on February 27th, the court granted EPA’s motion to transfer the petitions challenging the disapproval of Utah and Oklahoma’s SIPs to the D.C. Circuit, concluding that the petitions “seek review of a nationally applicable final rule.”
    • Eleventh Circuit: The State of Alabama and the Alabama Department of Environmental Management (Case No. 23-11173), along with Alabama Power Company and PowerSouth Energy Cooperative (Case No. 23-11196), challenged the disapproval of Alabama’s “good neighbor” SIP. The court granted petitioners’ motion to stay EPA’s disapproval of Alabama’s SIP. Briefing is completed but oral argument has not yet been scheduled.

    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 27, 2023, 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 February 28th, following the Tenth Circuit’s ruling transferring Utah and Oklahoma’s petitions to the D.C. Circuit, the D.C. Circuit directed the parties to “file motions to govern future proceedings in these cases by March 29, 2024.”

    Issuance of Federal Implementation Plans

    Last June, 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. (Last July, 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.) Starting in 2023, the rule:

    • modified 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);
    • transitioned 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
    • brought 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 were 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 assumed 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 gave 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 modified 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 also set “backstop daily emissions rates … for coal steam units greater than or equal to 100 MW in covered states.” These backstop rates required 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 also imposed 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 included “reciprocating internal combustion engines 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.

    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:

    • Fifth Circuit: The states of Texas, Louisiana, Mississippi, and dozens of other organizations challenged EPA’s “good neighbor” FIPs for those states (Case No. 23-60300). Last July, the court granted the petitioners’ motions to stay further proceedings pending a decision on the earlier challenges to the disapproval of the states’ SIPs.
    • Sixth Circuit: The Commonwealth of Kentucky (Case No. 23-3624), the Kentucky Energy and Environment Cabinet (Case No. 23-3605), Energy Transfer LP (Case No. 23-3641), and Buckeye Power (Case No. 23-3647) challenged EPA’s “good neighbor” FIPs for Kentucky, Michigan, and Ohio. EPA has moved to dismiss the petitions or transfer them to the D.C. Circuit. On November 9, 2023, the court granted EPA’s motion to transfer the petitions to the D.C. Circuit.
    • Seventh Circuit: Energy Transfer LP challenged EPA’s “good neighbor” FIP for Illinois (Case No. 23-2510) and Indiana (Case No. 23-2511). Energy Transfer LP moved to stay the FIPs pending judicial review. EPA moved to dismiss the petitions or transfer them to the D.C. Circuit. On November 6, 2023, the Seventh Circuit granted the motion to transfer the petitions.
    • Eighth Circuit: The states of Arkansas (Case No. 23-2769) and Missouri (Case No. 23-2771) and two other organizations challenged EPA’s “good neighbor” FIP for those states. Last August, the court granted motions from the petitioners to hold those petitions in abeyance pending decisions on the petitioners’ earlier challenge to the disapproval of the states’ SIPs.
    • Ninth Circuit: Nevada Cement Company LLC challenged EPA’s “good neighbor” FIP for Nevada (Case No. 23-1098). Last July, the court granted the petitioner’s unopposed motion to hold that petition in abeyance pending a decision on the earlier challenge to EPA’s disapproval of the state’s SIP.
    • Tenth Circuit: The state of Oklahoma (Case No. 23-9561), the Utah Municipal Power Agency (Case No. 23-9557), and other petitioners challenged EPA’s “good neighbor” FIP for those states. Last August, the court granted the petitioners’ unopposed motion to hold those petitions in abeyance pending a decision on the earlier challenge to EPA’s disapproval of the states’ SIPs.
    • Eleventh Circuit: The state of Alabama (Case No. 23-12528) and one organization challenged EPA’s “good neighbor” FIP for that state. Last August, the court granted a motion from the petitioners to hold that petition in abeyance pending a decision on the petitioners’ earlier challenge to the disapproval of the state’s SIP.
    • D.C. Circuit: The states of Utah (Case No. 23-1157); Ohio, West Virginia, and Indiana (Case No. 23-1183); Wisconsin (Case No. 23-1201); and Nevada (Case No. 23-1209), along with numerous organizations, challenged EPA’s “good neighbor” FIPs for their states. The court consolidated the petitions under Case No. 23-1157. On October 11, 2023, the court denied a motion from the petitioners to stay EPA’s “good neighbor” FIP pending judicial review. (The court denied additional motions to stay the FIP on December 4, 2023.)

    In August 2023, several associations, companies, and government agencies, including Hybar, LLC, U.S. Steel, Cleveland-Cliffs, and the Arkansas Department of Energy and Environment, Division of Environmental Quality, filed petitions for reconsideration of the “Good Neighbor” FIPs for Arkansas, Minnesota, and more broadly. On March 27th, EPA Administrator Regan signed a notice and sent out letters partially denying those petitions for reconsideration. In an enclosure to those letters, EPA rejected the petitioners’ arguments that the FIP should not apply in any state while it is stayed in several states, explaining: “Because the methodology for defining [each state’s] obligations ultimately relies on a determination regarding what emissions reductions each type of regulated source can cost-effectively achieve, the obligations set for sources in each state are independent of the number of states included in the Plan.”

    On October 13, 2023, the states of Ohio, Indiana, and West Virginia filed an emergency application for a stay in the United States Supreme Court, arguing that EPA’s FIP is flawed and that the Court should stay it while Ohio and other states challenge it in the D.C. Circuit. Other groups, including the American Petroleum Institute, the Midwest Ozone Group, and U.S. Steel, filed similar emergency applications. Surprisingly, the Court scheduled oral argument on the application and directed counsel to “be prepared to address, among other issues related to the challenge … , whether the emissions controls imposed by the Rule are reasonable regardless of the number of states subject to the Rule.” The oral argument was held on February 21st. Three of the Democrat-appointed justices – Justice Jackson, Sotomayor, and Kagan – seemed skeptical that the case qualified for emergency relief and worried about the precedent that granting such relief would establish. Two Republican-appointed justices, Chief Justice Roberts and Justice Kavanaugh, seemed skeptical of EPA’s failure to determine the cost-effectiveness of the controls required under the FIPs if those requirements applied to fewer than the 23 upwind states. The Court has yet to rule on the emergency applications

    Most recently, on February 16th, EPA published a proposed rule to partially disapprove Arizona, Iowa, Kansas, New Mexico, and Tennessee’s SIP submissions and issue FIPs for those states to address their contribution to downwind nonattainment with, or issues with maintaining, the 2015 ozone NAAQS. The five states would be required to participate in the NOX Ozone Season Group 3 Trading Program starting in 2025. And non-EGUs in Arizona would be required to comply with the NOx limits for non-EGUs, including the limits for reciprocating internal combustion engines used in transporting natural gas. Comments on the proposed rule may be submitted through May 16th.

    New Source Performance Standards and Existing Source Emissions Guidelines for Fossil Fuel-Fired Electric Generating units

    Section 111(b) of the Clean Air Act requires EPA to publish, and periodically revise, a “list of categories of stationary sources” that “cause[ ], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA must then publish standards of performance for new (and modified) sources in those categories (called New Source Performance Standards or NSPS); review those standards at least every 8 years (if information on their efficacy is readily available); and revise the standards “if appropriate.” Section 111(d) of the Act, in turn, requires EPA to establish a procedure under which states submit plans to establish standards of performance for air emissions from existing sources in those same source categories (though not for air pollutants for which EPA has NAAQS or for source categories regulated under Section 112 of the Clean Air Act). Importantly, for both programs, “standards of performance” should reflect “the degree of emission limitation achievable through the application of the best system of emission reduction” (BSER) that EPA “determines has been adequately demonstrated.”

    Last May, EPA proposed its replacement to the Obama Administration’s Clean Power Plan and the Trump Administration’s Affordable Clean Energy Rule, neither of which ever went into effect, and to the existing NSPS for new fossil-fuel-fired EGUs. To avoid the types of legal arguments that caused many to target the Clean Power Plan, EPA chose to focus “add-on controls and clean fuels” as BSER for fossil-fuel-fired EGUs, an approach that (EPA noted) it has traditionally followed when selecting BSER in prior Clean Air Act § 111 rulemakings. However, the controls and fuels it selected will undoubtedly be the subject of legal challenges to this rulemaking, if the final rule resembles EPA’s proposed rule. And EPA’s proposal to phase in the rule’s requirements over time will also undoubtedly be challenged.

    EPA’s proposed NSPS and existing source emissions guidelines were based on the assertion that “carbon capture and sequestration/storage [CCS] and co-firing with lower-GHG fuels” (specifically, low-GHG hydrogen) are “available to the power sector”, and that Congress has made these technologies “cost-effective” through the tax credits included in its recent massive spending bills. They were also based on the legal argument that Clean Air Act § 111(d) allows EPA to find that a control technology 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 NSPS 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).

    New Source Performance Standards

    EPA’s proposed NSPS differ, depending on whether the source is new, modified, or reconstructed.

    For fossil-fuel-fired steam generating units that undertake a 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:

     

    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) The later of startup or the final rule’s effective date 120 - 160 lb CO2 / MMBtu, depending on the fuel 
    Intermediate Load Units

    (capacity factor > 20% and < site-specific value based on design efficiency)    		 First Highly efficient generation (“use of high-efficiency simple cycle turbine technology [plus] the best operating and maintenance activities”) 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

     

    For new and reconstructed natural-gas-fired baseload units, moreover, 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:

     

    Base Load Units

    Natural-gas-fired EGUs, nameplate heat input > 2,000 MMBtu/hr

    Natural-gas-fired EGUs, 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”) 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

     

    Existing Source Emission Guidelines

    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 originally proposed setting different presumptive standards of performance and compliance deadlines based on whether the unit chose CCS or co-firing clean hydrogen:

     

    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

     

    However, on February 29th, EPA announced that it was “taking a new, comprehensive approach to cover the entire fleet of natural gas-fired turbines, as well as cover more pollutants including climate, toxic and criteria air pollution[.]” And on March 26th, EPA announced that it had opened a non-regulatory rulemaking docket “to gather input about ways we can design a stronger, more durable approach to greenhouse gas regulation of the entire fleet of existing gas combustion turbines in the power sector under Clean Air Act Section 111(d).” In that docket, it posted a document listing various “framing questions” to help it reconsider its selection of BSER for existing gas combustion turbines, including whether it should consider other technologies, such as integrating battery storage, solar generation, or utility-scale fuel cells; allow “mass-based trading” or “emissions averaging”; sub-categorize stationary combustion turbines; or provide “other compliance flexibilities.” The deadline for comments is May 28th.

    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 … [in-use] locomotives” for NOx emissions to help the San Joaquin Valley meet the PM2.5 and ozone NAAQS. 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.

    In November 2022, Joe Goffman, the then-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. 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. For example, 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 EPA’s Administrator must find that California needs its own “standards to meet compelling and extraordinary conditions … .” Moreover, 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, went further than the statute. Rather than simply prohibiting local emission standards for new locomotives and locomotive engines, paragraph (b) of the rule also prohibited “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 EPA’s April 27, 2023 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.” 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 proposed to amend its regulations to allow California to “request authorization from the Administrator to enforce” emission standards for non-new locomotives and engines. And on November 8, 2023, EPA finalized that rule. EPA’s regulations, at 40 C.F.R. § 1074.101(a), now require “California [to] request authorization from the Administrator to enforce its adopted standards and other requirements relating to control of emissions from nonroad engines or vehicles that are not preempted ... .”

    On November 7, 2023, California submitted such a request to EPA. California’s locomotive regulations would generally apply to “[l]ocomotives propelled by engines with a total Rated Power of [at least] 1,006 horsepower (hp)[,]” and operated in the state of California, except those owned by colleges, universities, or the military. As summarized by the state, the regulations would require locomotive operators to make payments, based on their emissions in California in the previous year, into funds that the operators could use only to reduce their locomotive emissions (though, for example, remanufacturing or repowering locomotives to lower- or zero-emission technologies). Starting in 2030, it would prohibit locomotives with original build dates 23 years old or older from operating in California unless they meet “the current cleanest EPA Tier ... for a locomotive of its type,” operate in a zero-emission configuration, or have primary engines below “the specified MWh.” Also starting in 2030, it would require “all passenger, switch, and industrial locomotives with engine build dates of 2030 or newer [to] operate in a [zero-emission] configuration while in California.” “[F]reight line haul locomotives … with engine build dates of 2035 or newer” would need to switch to zero-emission configurations in California in 2035. And locomotives would not be permitted to idle in California for more than 30 minutes, except for certain purposes. On February 27th, EPA announced that it would hold a public hearing on California’s request in late March. EPA also invited the submission of written comments on the request through April 22nd.

    Infrastructure Generally

    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. 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. Last June, the states filed a petition for a writ of certiorari in the United States Supreme Court (Case No. 22-1248). The Supreme Court denied that petition on October 10, 2023.

    A second, initially 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 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 appealed the court’s ruling to the U.S. Court of Appeals for the Fifth Circuit and, in State v. Biden, No. 22-30087, 2022 U.S. App. LEXIS 7589 (5th Cir. Mar. 16, 2022), the Fifth Circuit stayed the injunction pending appeal. And 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. On December 22, 2023, the Interagency Working Group issued a short memorandum that said, simply, that “[s]ince the research underlying the IWG’s interim estimates was published, there have been a variety of developments in the scientific literature. As agencies consider applying the SC-GHG in various contexts, consistent with OMB Circular No. A-4 and applicable law, agencies should use their professional judgment to determine which estimates of the SC-GHG reflect the best available evidence, are most appropriate for particular analytical context, and best facilitate sound decision-making.” And EPA did develop its own estimates, to support its rulemaking for the Oil and Natural Gas sector New Source Performance Standards. 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 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.

    “Waters of the United States”

    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 develop the property or cultivate the land. The definition of “waters of the United States” (WOTUS) 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 scope of federal CWA jurisdiction. But 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 Rule. In response, in 2023, the agencies adopted the “familiar pre-2015 definition” of WOTUS. As summarized in the rule preamble, that definition included:

    • 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”;

    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, borrowing language from Justice Kennedy’s Rapanos concurrence and the CWA’s statement of purpose (in 33 U.S.C. § 1251(a)). And 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, this 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). On March 19, 2023, the Southern District of Texas granted Texas and Idaho’s motion for a preliminary injunction within those states. On April 12, 2023, 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 10, 2023, 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 (Case Nos. 23-5343 and 23-5345).

    On May 25, 2023, the Supreme Court issued its opinion in Sackett v. EPA, 598 U.S. 651. 143 S. Ct. 1322, 215 L.Ed.2d 579 (2023). The majority opinion, written by Justice Alito, held that Scalia’s “continuous surface connection” standard from Rapanos was the proper standard for defining WOTUS. Accordingly, the Court held that the CWA extends only to those wetlands that are “as a practical matter indistinguishable from [WOTUS].” Thus, a wetland is a WOTUS if: (1) an adjacent body of water constitutes WOTUS, meaning it is a “relatively permanent body of water connected to traditional interstate navigable waters,” and (2) 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 included in the 2023 definition of WOTUS.

    Following the decision, EPA and the U.S. Army Corps of Engineers published a final rule on September 8, 2023, amending the WOTUS definition to align with the Court’s decision. The amendments were limited to removing the “significant nexus” test and revising the definition of “adjacent.” The U.S. Army Corps of Engineers also resumed issuing approved jurisdictional determinations that were paused pending the Sackett decision. On November 13, 2023, multiple parties filed amended complaints challenging the September 2023 rulemaking in the Southern District of Texas and District of North Dakota actions. Another group of associations intervened in the District of North Dakota action and filed their own complaint on December 12, 2023.

    Discharges To or Via Groundwater

    In 2020, the United States Supreme Court addressed the Clean Water Act’s other tent pole of federal regulatory jurisdiction: the definition of “discharge of pollutants,” for which a National Pollutant Discharge Elimination System (NPDES) or § 404 permit is required. In County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), the issue was whether a “point source” (in that case, an underground injection well) that releases pollutants into groundwater requires an NPDES permit for any pollutants that travel via groundwater to waters of the United States.

    In the decision below, the U.S. Court of Appeals for the Ninth Circuit had adopted a “fairly traceable to a point source” test. EPA, on the other hand, issued an interpretive statement in 2019 that took the position that all releases of pollutants to groundwater are excluded from the NPDES permitting program. A six-Justice majority of the Court navigated a path between the positions staked out by the parties, holding that the Clean Water Act requires permits for both direct discharges from point sources into navigable waters and where pollutants from point sources reach navigable waters after passing through groundwater, if the facts demonstrate the “functional equivalent of a direct discharge.” “That is,” the Court held, “an addition [of a pollutant] falls within the statutory requirement that it be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means.” Thus, discharges from a pipe that ends “a few feet from navigable waters” and emits pollutants that travel “through groundwater (or over the beach)” to navigable waters “clearly” would require a permit. A pipe located many miles away and emitting pollutants that take many years to arrive via groundwater would not.

    The Court recognized that its test, and the examples it provided, did not clearly explain how to deal with “middle instances” between these extremes. To that end, it provided a non-exclusive list of factors that “may prove relevant” when applying the test:

    • (1) transit time,
    • (2) distance traveled,
    • (3) the nature of the material through which the pollutant travels,
    • (4) the extent to which the pollutant is diluted or chemically changed as it travels,
    • (5) the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source,
    • (6) the manner by or area in which the pollutant enters the navigable waters, and
    • (7) the degree to which the pollution (at that point) has maintained its specific identity.

    The Court invited the lower courts to provide guidance on the proper application of these factors through decisions in individual cases, and suggested that EPA could mitigate some of the uncertainty created by this fact-intensive new standard by issuing administrative guidance.

    On November 27, 2023, EPA announced that it had issued draft guidance on implementing the Maui decision. EPA accepted comments on the draft guidance through December 27, 2023.

      Authors