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Legislation and deals to protect the environment from climate change

The latest development in climate change litigation came out of last week’s Eastern District of Pennsylvania dismissal – spurring more speculation that these issues will eventually be appealed to and decided by the U.S. Supreme Court. This is one of several novel cases around the country attempting to hold the federal government responsible for climate change.

The decision comes on the heels of a similar, closely watched, and highly publicized suit filed by 21 minors – Juliana v. U.S. – in which  an Oregon federal judge denied a comparable motion to dismiss, but granted interlocutory appeal, opening the door for it to be presented to the Ninth Circuit.…
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EPA Sign

The U.S. Environmental Protection Agency (EPA) recently proposed a revised policy to clarify what constitutes “ambient air” under the Clean Air Act, which will directly affect what areas stationary sources of air emissions must model to determine the effect of their facilities on air quality. The revised policy will most notably affect sources that have to model air quality around their facilities to demonstrate compliance with National Ambient Air Quality Standards (NAAQS), as well as sources applying for air construction permits under the EPA’s Prevention of Significant Deterioration (PSD) permitting program.…
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EPA Offices, Washington DC

Last week, the U.S. Environmental Protection Agency (EPA) completed its reconsideration of a January 2009 final action on “project aggregation.” Project aggregation is the concept that addresses when to combine nominally separate physical or operational changes at a stationary source to determine whether the changes trigger New Source Review (NSR) permitting requirements under the Clean Air Act (CAA). The 2009 final action (74 FR 2376) (the “2009 Aggregation Action”) sets forth the EPA’s desired interpretation and policy concerning when to aggregate such activities into a single project. The EPA has submitted the final action reconsidering the 2009 Aggregation Action for publication in the Federal Register (the “2018 Reconsideration”). After the 2018 Reconsideration is published, the 2009 Aggregation Action will go into effect…
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The Environmental Protection Agency (EPA) issued a new guidance memorandum on Thursday, January 25, 2018 that addresses the question of when – and whether – a major source of hazardous air pollutants (HAPs, such as lead, mercury, and benzene) can be reclassified as an “area source” under Section 112 of the Clean Air Act, and thereafter avoid major source permitting requirements. The new guidance allows major sources to become area sources at any time, by agreeing to federally enforceable limits on their potential to emit HAPs. This replaces the EPA’s previous “once in, always in” policy, whereby any major source of HAPs remained a major source regardless of later reductions in its potential to emit HAPs.
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Natural Gas Fired Electrical Power Plant

Environmental Protection Agency (EPA) Administrator Scott Pruitt declared “the war against coal is over” yesterday in his announcement that the EPA will move to repeal the Clean Power Plan. In a lengthy proposal leaked last week that was then updated and signed October 10, the EPA proposes to repeal the Clean Power Plan (CPP), a controversial regulation designed to cut carbon dioxide (CO2) emissions from existing fossil fuel-fired power plants. In support of the proposal, the EPA describes the Obama-era EPA’s interpretation of the Clean Air Act as unlawful.…
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EPA Offices, Washington DC

The U.S. Court of Appeals for the Fourth Circuit recently overturned a lower court’s order for the Environmental Protection Agency (EPA) to conduct a study of air pollution rules’ impact on jobs, and it has broad ramifications across industries.

The Fourth Circuit’s ruling in Murray Energy Corp. v. Adm’r EPA may impact the scope of citizen suits under the Clean Air Act (CAA) and other statutes, including environmental activism cases with the potential to expose companies to significant liabilities. In addition, the EPA’s future rulemaking is likely to continue to have significant implications for industry jobs.…
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Natural Gas Fired Electrical Power Plant

The U.S. Court of Appeals for the District of Columbia recently denied the Environmental Protection Agency’s (EPA) proposed delay of an Obama-era rule that limits methane emissions from new oil and gas equipment, sending oil and gas companies scrambling to immediately ensure compliance with the rule to avoid any enforcement actions.…
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In February, presidential advisor Steve Bannon stated that a primary goal of the Trump administration was the “deconstruction of the administrative state.” One feature of the administrative state is “administrative deference,” which involves courts deferring to federal agencies’ interpretations of federal statutes – a topic that we have discussed repeatedly in the past few months,  see here and here.…
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On November 10, 2016, a federal district court in Oregon allowed litigation to proceed against the federal government based on its alleged failure to protect future generations against the threat of climate change. See Juliana v. United States, No. 15-1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016). The decision represents the first time a court has determined that plaintiffs sufficiently alleged that the government’s conduct infringed their constitutional right to a clean and healthy climate system.…
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Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA.…
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