August 28, 2019 Practice Points

A Hit and a Miss (Regardless of Which Side You Are On)

In the last few days, both the regulated community and environmental groups each chalked up one win and one loss.

By Karen Aldridge Crawford

In the last few days, both the regulated community and environmental groups each chalked up one win and one loss. The U.S. Environmental Protection Agency (EPA) as a result has more work to do on both challenged regulations.

WOTUS

(State of Georgia, et al. v. Andrew R. Wheeler et al. No. 2:15-ev-00075)

On August 21, 2019, the District Court for the Southern District of Georgia, Brunswick Division, held that the Waters of the United States (WOTUS) Rule promulgated by the EPA and the U.S. Army Corps of Engineers in 2015 “extends the Agencies’ delegated authority beyond the limits of the CWA [Clean Water Act].” The court determined that the rule was not a permissible construction of the phrase “waters of the United States” within the statute and that the agencies’ promulgation of the WOTUS Rule violates the procedural requirements of the Administrative Procedures Act.

The order granted the plaintiffs’ (originally a group of states) motions for summary judgment, denied the intervenor defendants’ (since the agencies declined to defend the rule, two environmental groups defended the substantive challenges) motion, denied the intervenor plaintiffs’ motion (at this time), remanded the WOTUS Rule back to the agencies for further proceedings consistent with this order (in lieu of vacatur, since efforts to repeal and replace are already underway), and left in place the court’s 2018 preliminary injunction enjoining enforcement of the rule in the states that were parties to the case pending the outcome of the ongoing administrative proceedings regarding the rule.

Ozone Standard

(Murray Energy Corporation, v. EPA, No. 15-1385)

On August 23, 2019, the D.C. Circuit upheld the EPA’s 2015 ozone standards, which lowered the primary National Ambient Air Quality Standards (NAAQS) ozone standard to 70 parts per billion, remanded the agency’s secondary standard for reconsideration, and vacated the grandfathering provision for pre-construction applications completed (but for which the permit had not been issued) prior to the adoption of the 2015 rule. The court determined that the EPA had adequately explained its decision to retain the form of the primary standard by considering and examining exposure assessments and taking the Clean Air Scientific Advisory Committee’s (CASAC) recommendations into account.

The court, however, found that the EPA had reviewed available new data in revising the secondary standard downward; had departed from CASAC’s recommendations in setting the secondary standard and retaining the form and averaging time it had previously used without adequately explaining its decision to use a three-year average of the W126 index as the benchmark; and had arbitrarily failed to identify a level of air quality requisite to protect against adverse effects from visible leaf injury; but did not act unlawfully or arbitrarily and capriciously in setting the NAAQS without regard for background ozone. Finally, in examining the challenge to the grandfathering provision, the court determined that the EPA could not ignore statutory language “that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any . . . national ambient air quality standard,” finding that Congress has spoken and “EPA cannot displace the statutory determinations simply because the agency’s preferred approach [might] be better policy.”

Karen Aldridge Crawford is a partner at Nelson Mullins in Columbia, South Carolina.


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