On November 2, 2021, the U.S. Environmental Protection Agency (EPA) announced a proposed rule involving three separate actions aimed at establishing a comprehensive and more stringent regulatory regime to reduce emissions from oil and gas operations across the United States (the Proposed Rules). The Proposed Rules seek to reverse the Trump Administration’s relaxation of methane standards for new, modified, or reconstructed sources, regulate so-called midstream (transportation and storage) sectors, and impose more stringent new source rules for methane and volatile organic compounds (VOC) (more stringent even than rules under the Obama Administration). We have previously covered the various iterations of methane regulation here, here, here, and here. Under the Proposed Rules, EPA also proposes to regulate existing oil and gas for the first time. Further information on each of these points is provided below.
Continue Reading EPA Proposes Sweeping Rule to Regulate Methane Emissions
Illinois Bill Proposes Statewide Standards for Solar, Wind Farm Energy Facilities
On April 29, Illinois Governor J.B. Pritzker released proposed legislation, SB2896 and HB4074, to set statewide minimum, uniform standards for wind farms and ground-mounted solar energy systems, including setback requirements, height restrictions, and landscape buffer requirements, while maintaining local authority over permitting and final project approval. Currently, Illinois counties have the authority to set all standards and siting procedures for wind and solar energy facilities.
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EPA Reinforces Position that Certain Types of ECM Changes in Road-Certified Vehicles Constitute “Tampering” Under the Clean Air Act
The U.S. Environmental Protection Agency (EPA) recently progressed its effort to stymie the aftermarket tuning of vehicles used for racing and competition in a complaint alleging that Gear Box Z violated the Clean Air Act by selling certain types of aftermarket software that modifies the engine control module (ECM), among other practices. EPA’s action is part of its national mobile source enforcement initiative to prevent the manufacturing, sale, and installation of aftermarket tuning and emission control defeat devices, in which EPA has pursued enforcement against both large and small suppliers.
Continue Reading EPA Reinforces Position that Certain Types of ECM Changes in Road-Certified Vehicles Constitute “Tampering” Under the Clean Air Act
Requirement to Report Accidental Releases to Chemical Safety Board Takes Effect
Under a new rule effective on Monday, March 23, 2020, owners and operators of stationary sources are required to report qualifying accidental releases to the ambient air of hazardous substances to the federal Chemical Safety and Hazard Investigation Board (CSB). While many companies are currently consumed with handling operations and logistics related to the coronavirus pandemic, compliance will still be expected going forward. Importantly, however, the CSB’s preamble to the new rule expresses a one-year grace period from the effective date of the rule, during which it will refrain from referring reporting violations for enforcement absent a knowing failure to report.
Continue Reading Requirement to Report Accidental Releases to Chemical Safety Board Takes Effect
EPA’s Final Power Plant Greenhouse Gas Rule Shifts Emissions Regulation to States
The EPA announced its final rule for power plant greenhouse gas (GHG) emissions, culminating often rancorous discussion and litigation over the EPA’s authority to regulate GHG emissions from existing coal-fired electricity generating sources. Under the new Affordable Clean Energy (ACE) rule, the states, not the federal government, are now responsible for driving down GHG emissions from power plants. Specifically, the EPA now requires unit-specific standards of performance to be developed by the states using its new emission guideline that details the “best system of emission reduction.”
Continue Reading EPA’s Final Power Plant Greenhouse Gas Rule Shifts Emissions Regulation to States
D.C. Circuit Court Decision Signals Reduced Public Oversight in Air Quality Monitoring
The D.C. Circuit handed down an opinion in Sierra Club v. EPA last month that tossed the Sierra Club’s challenge of a U.S. Environmental Protection Agency (EPA) rule from the Obama Administration. The result may be greater flexibility and reduced public oversight in state ambient air quality monitoring.
Continue Reading D.C. Circuit Court Decision Signals Reduced Public Oversight in Air Quality Monitoring
Latest Kids’ Climate Suit Development Increases Supreme Court Speculation
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.
Continue Reading Latest Kids’ Climate Suit Development Increases Supreme Court Speculation
EPA Proposes to Clarify Areas Excluded from Clean Air Act’s Definition of “Ambient Air”
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.
Continue Reading EPA Proposes to Clarify Areas Excluded from Clean Air Act’s Definition of “Ambient Air”
EPA Completes Reconsideration of “Project Aggregation” Final Action
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
Continue Reading EPA Completes Reconsideration of “Project Aggregation” Final Action
EPA Revises Guidance Allowing Reclassification of Major Sources of Hazardous Air Pollutants as Area Sources Under the Clean Air Act
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.
Continue Reading EPA Revises Guidance Allowing Reclassification of Major Sources of Hazardous Air Pollutants as Area Sources Under the Clean Air Act