Regulatory Update

Posted on February 5, 2016 by Stephanie Bergeron Perdue

Back when I initially started this blogging exercise for a 1/11 posting, I had a clever title in mind: WIS 2016?  (aka What’s in Store 2016?)  But now it’s February.  And I even missed the filing deadline for a Groundhog’s Day-related theme.  BTW, for those who may NOT have heard, Punxsutawney Phil and Staten Island Chuck failed to see their shadows.  Early spring.  Ah, perhaps I should go with a thawing theme as in when will there be any definitive outcomes for some of our favorite environmental issues?  And I commit to use as many abbreviations and acronyms as possible. 

1)      CPP – No foreseeable thaw.

If I could use a symbol, kind of like the artist formerly known as Prince, I would.  What’s that?  Surely you jest.  CPP is THE Clean Power Plan.  At any rate, way back in January 2016, the D.C. Circuit denied the various Motions to Stay this controversial rule.  And then there was the Stay Application filed by the 26-state coalition, led by West Virginia, and industry types in the SCOTUS.  DOJ/EPA has until 2/4 to respond; the States are expected to file a reply 2/5.  What’s at stake?  Regulating emissions from existing power plants under FCAA 111(d) in a, well, unprecedented manner.  Yes, Texas is one of the states challenging the rule.  Let’s momentarily set aside the fact that the rule deals with power plants and focus solely on the structure of the regulation – hence my use of the term unprecedented.

2)      NAAQS (pronounced naks), more specifically ozone – No foreseeable thaw.

Yes, the October 2015 EPA regulation was also challenged by multiple groups and states, including Texas/TCEQ which filed its Petition for Review on 12/23/2015.  The rule proposal ranged from 65 ppb to 70 ppb; 70 ppb was the final number which lowers the standard 5 ppb from the last revision in 2008.  Statements of Issues for the case are due 2/4/2016. State designations for attainment/NA are due October 2016.  The attainment deadlines are from 2020 to 2037, depending on the classification.  What will you be doing on Groundhog’s Day 2037??

3)      WOTUS (pronounced wo-tus) – Some thaw, mostly muddying the water.  (Sorry)

EPA’s final “Clean Water Rule: Definition of Waters of the United States” was published on 6/29/2015.  Fast forward to 12/8/2015 on which date oral argument was held in the 6th C. COA. I am stepping over the N. Dakota litigation as well as litigation pending in Galveston, Texas. At the moment, there is a nationwide stay against the rule courtesy of the 6th C.  This is in effect while the court sorts out the jurisdictional issue as to whether the rule should be challenged at the federal district court level or appellate level.  BTW, I don’t really like to refer to this rule as WOTUS.  I know, it rhymes with SCOTUS and POTUS. How ‘bout U.S. waters or federal waters?  Most people would still look at us, like, what the heck are they discussing?  That’s a nice segue to note that this federal rule clarifies (ahem) what waters are subject to regulation under federal law, i.e. the CWA.  I’m not sure bright (shore)lines are on the horizon.

4)      EPA SSM SIP Call – Thaw

I had to say thaw for some variety.  And compared to above matters, this case is actually further along.  This rule deals with the use of an affirmative defense in emission event cases and applies to 36 states, including Texas.  (I should mention that Texas’ rules are SIP approved and withstood challenge in the 5th C. COA. Yes, Texas is challenging.)   Briefing is due between 3/6/2016 and 9/4/16; oral argument is anticipated in late November or early December 2016.  I’m refusing to spell out SSM SIP because it makes me feel like I am a knowledgeable insider.



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