On January 23, 2014, the Illinois Pollution Control Board (Board) declined to adopt the Illinois Environmental Protection Agency’s proposed coke and coal bulk terminals rule, also referred to as the petroleum coke or “petcoke” rule, for emergency rulemaking.  The Board found that no emergency exists that requires adopting the rule under the emergency rulemaking process. 

By Mary Ann Mullin and Daniel J. Deeb

Introduction

On October 1, 2012, the Federal Trade Commission (FTC) released the finalized revisions of the ‘‘Green Guides,’’ guidance to businesses that market their products or services as environmentally friendly.
Continue Reading The FTC’s Revised Green Guides: Red Lights, Yellow Lights, and Green Lights for Marketers

In a unanimous decision last week, the Ninth Circuit Court of Appeals ruled that federal common law public nuisance claims regarding domestic greenhouse gas emissions have been displaced by the Clean Air Act (“CAA”) and the United States Environmental Protection Agency (“USEPA”) action the CAA authorizes.  Native Vill. of Kivalina v. ExxonMobil Corp., 09-17490, 2012 WL 4215921 (9th Cir. Sept. 21, 2012).
Continue Reading Another Hurdle for GHG Suits as Ninth Circuit Affirms District Court Ruling in Kivalina v. ExxonMobil

Originally published as a Schiff Hardin Environmental Update newsletter

In a 2-1 decision, the Court of Appeals for the D.C. Circuit vacated the United States Environmental Protection Agency’s (“USEPA”) Cross-State Air Pollution Rule (“CSAPR” or the “Transport Rule”), USEPA’s attempt to “fix” the Clean Air Interstate Rule (“CAIR”) to regulate downwind state air pollution under the Clean Air Act (“CAA”). EME Homer City Generation LP v. EPA, D.C. Cir. No. 11-1302 (Aug. 21, 2012). In 2008, the D.C. Circuit struck down and remanded CAIR, with instructions to USEPA to continue administration of the CAIR until the replacement rule was implemented. Here, in light of the vacatur of the CSAPR, the D.C. Circuit has instructed USEPA to “continue administering CAIR pending [USEPA’s] promulgation of a valid replacement.”
Continue Reading DC Circuit Vacates CSAPR, Tells USEPA to Continue CAIR

Originally published as a Schiff Hardin Environmental Update newsletter

The U.S. Court of Appeals for the District of Columbia Circuit issued a per curiam opinion on Tuesday morning upholding greenhouse gas-related rules promulgated by the Environmental Protection Agency (EPA) after the U.S. Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007). The opinion, Coalition For Responsible Regulation, Inc., et al. v. EPA, No. 09-1322 (June 26, 2012), consolidates four separate cases brought by States and regulated industries petitioning for review of EPA’s greenhouse gas regulations. The petitioners claimed that EPA misconstrued the Clean Air Act and acted arbitrarily and capriciously.
Continue Reading DC Circuit Upholds EPA Greenhouse Gas Regulations

Originally published as a Schiff Hardin Environmental Update newsletter

On Thursday, April 26, 2012, the Illinois State Senate unanimously passed a bill, SB 3280, setting standards for the extraction of hydrocarbons from shale using hydraulic fracturing, known as “fracking,” in Illinois. Fracking uses a mixture of water, sand and chemicals to reach underground gas reserves. Drilling activity is expected to occur in southern Illinois near the New Albany Shale formation. SB 3280 has been described as a compromise between the various stakeholders, including industry, landowners and environmental groups.
Continue Reading Illinois Senate Passes Fracking Bill

Originally published as a Schiff Hardin Environmental Update newsletter

On Tuesday, March 27, 2012, the U.S. Environmental Protection Agency (“USEPA”) announced its long-awaited New Source Performance Standard (Section 111(b) of the Clean Air Act) for carbon dioxide emitted by new power plants. The proposal would set the first national limits on greenhouse gas emissions from fossil-fuel-fired electric generating units (“EGUs”) constructed in the future, effectively making natural gas the most economical fuel source for generating electricity.
Continue Reading Performance Standards for Carbon Dioxide Emissions from New EGUs

Originally published as a Schiff Hardin Environmental Update newsletter

On Wednesday, March 21, 2012, the United States Supreme Court unanimously held that administrative orders issued by the U.S. Environmental Protection Agency (USEPA) under the Clean Water Act (CWA) are subject to pre-enforcement judicial review under the Administrative Procedure Act (APA). Sackett, et vir, v. EPA, 566 U.S. ____ (2012). The Court ruled against USEPA and in favor of the couple that brought the suit, the Sacketts, who argued they were entitled to bring a civil action under the APA to challenge USEPA’s issuance of an administrative compliance order issued under § 309 of the CWA.
Continue Reading SCOTUS Allows Pre-Enforcement Review of USEPA Administrative Compliance Orders Under CWA

Originally published as a Schiff Hardin Environmental Update newsletter

As the D.C. Court of Appeals heard an unprecedented two days of oral argument on challenges to USEPA’s suite of greenhouse gas (“GHG”) regulations, USEPA issued an advance copy of yet another GHG regulation — the third step of its GHG permit Tailoring Rule (“Proposed Step 3 Rule”). Proposed Step 3 retains the current GHG permitting thresholds for the Prevention of Significant Deterioration (“PSD”) and Title V Operating Permit Programs under the Clean Air Act (“CAA”). The proposal is consistent with USEPA’s phased-in approach to tailor the requirements of the CAA to apply to only the largest emitters. In so doing, USEPA recognizes that state agencies are not ready to handle a bigger permitting program.
Continue Reading USEPA Proposes to Retain Current GHG Thresholds in Step 3 of the Tailoring Rule

Originally published as a Schiff Hardin Environmental Update newsletter

When the D.C. Circuit Court of Appeals stayed the implementation of the Cross-State Air Pollution Rule, or Transport Rule, 76 Fed.Reg. 48208 (August 8, 2011), on December 30 of last year, it did not address the U.S. Environmental Protection Agency’s (USEPA) late December addition of five states (Iowa, Michigan, Missouri, Oklahoma and Wisconsin) and proposal for inclusion of a sixth state (Kansas). USEPA issued a Notice of Intent on February 6, 2012, that it will not require these additional states to implement the Transport Rule prior to resolution of the appeals of the rule that led to the court’s stay. 77 Fed.Reg. 5710, 5711 (Feb. 6, 2012).
Continue Reading States Added to Coverage Under the Transport Rule Excused from Compliance