Tag Archives: Clean Air Act

Methane Rule Litigation Creates Uncertainty for Oil and Gas Companies

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.… Continue Reading

EPA Must Examine Effects of Clean Air Act Regulations on Jobs

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 … Continue Reading

Environmental Groups Challenge EPA Refinery Rule

Environmental groups continue their attack on long-standing rule provisions under the Clean Air Act that limit or exclude liability related to “startup, shutdown, and malfunction” events. Historically, USEPA has acknowledged that it may be impracticable, if not impossible, for industry to meet emissions standards during certain periods, including during startup, shutdown or malfunction events, when … Continue Reading

Third Circuit Holds Diligent Prosecution Bar Does Not Preclude Jurisdiction for Citizen Suit

On January 6, 2016, the Third Circuit held that the Clean Air Act’s diligent prosecution bar cannot be the basis for a motion to dismiss for lack of subject matter jurisdiction.  Instead, the bar requires citizen suits under the Act to be dismissed for failure to state a claim. Group Against Smog & Pollution v. Shenango, … Continue Reading

Fifth Circuit Lets Citgo Fly Free

On September 4, 2015, the United States Court of Appeals for the Fifth Circuit overturned Citgo Petroleum Corporation’s two convictions under the Clean Air Act (CAA) and three convictions under the Migratory Bird Treaty Act (MBTA).  The court held that the district court had erred in allowing improper jury instructions and had misinterpreted the MBTA’s … Continue Reading

EPA’s Newest Attempt at Aggregating Emission Sources in the Oil & Gas Industry

EPA has proposed to resolve an issue that has vexed the oil and gas industry for years—how to determine which operations compose a single “source” for permitting decisions.  Unfortunately, the proposed resolution introduces new ambiguities.  The proposal comes as part of President Obama’s Climate Action Plan, but in reality is the latest chapter in EPA’s … Continue Reading

D.C. Circuit Remands Several Upwind States’ SO2 Emissions Budgets But Sides with EPA on all other Challenges to Cross-State Air Pollution Rule

On July 28, 2015, the U.S. Court of Appeals for the District of Columbia Circuit remanded without vacatur several states’ maximum emission allowances, or “emissions budgets,” for sulfur dioxide (SO2) and nitrogen oxides (NOx) under the Cross-State Air Pollution Rule (CSAPR) back to the Environmental Protection Agency (EPA). EME Homer City Generation, L.P., v. EPA, … Continue Reading

Consent Decrees May Not Preclude Certain Claims in Citizen Suits

On June 17, 2015, an Ohio district court ruled that a consent decree in a separate Illinois action did not preclude certain claims asserted in a citizen suit under the Clean Air Act (CAA).  Graff v. Haverhill N. Coke Co., No. 1:09-cv-670 (S.D. Ohio June 17, 2015).  Generally, a consent decree precludes citizen suit plaintiffs … Continue Reading

EPA Announces Long-Awaited Renewable Volume Obligations

On May 29, the United States Environmental Protection Agency (EPA) proposed long-delayed Renewable Fuel Standard (RFS) volume requirements for 2014, 2015, and 2016. Despite significant efforts to promote the use of renewable fuels, real-world limitations, such as the slower than expected development of the cellulosic biofuel industry, less growth in gasoline use than was expected … Continue Reading

EPA Issues Final SSM SIP Call and Finalizes Revised SSM Policy

On May 22, 2015, the U.S. Environmental Protection Agency (EPA) finalized a rule requiring 36 states to revise their regulations governing emissions from sources during startup, shutdown and malfunction (SSM) periods, thus issuing a “SIP call” for each of those 36 states.  EPA’s 554-page notice was issued in a final action triggered by litigation brought … Continue Reading

Supreme Court Limits USEPA’s Greenhouse Gas Regulations, Refuses to “Wave Goodbye” to Separation of Power Principles

In a major reversal for the United States Environmental Protection Agency (USEPA), the Supreme Court on June 23, 2014, limited USEPA’s authority to regulate greenhouse gases (GHGs), holding that USEPA did not have the authority to change a statutory applicability term of the Clean Air Act (Act).  Utility Air Regulatory Group v. Environmental Protection Agency, … Continue Reading

USEPA’s Piecemeal Approach to Aggregation Under the Clean Air Act Falls to Pieces

On May 30, 2014, the U.S. Court of Appeals for the D.C. Circuit issued a decision in National Environmental Development Assoc.’s Clean Air Project v. EPA (NEDA)[1] that limits the ability of the United States Environmental Protection Agency (USEPA or the Agency) to apply different interpretations of its Clean Air Act (the Act) regulations in … Continue Reading

D.C. Circuit Upholds the Utility MACT Rule in 2-1 Split

White Stallion Energy Center, LLC v. EPA, No. 12-1100 (D.C. Cir. Apr. 15, 2014). The D.C. Circuit upheld the controversial Utility MACT Rule, also known as the Mercury and Air Toxics Standard or MATS, on April 15, 2014, with a 2-1 split, rejecting challenges from State, Industry, and Labor petitioners to the United States Environmental … Continue Reading

Recent Developments in Toxic Torts and Environmental Law

A team of Schiff Hardin attorneys compiled “Recent Developments in Toxic Torts and Environmental Law”  for the Tort Trial & Insurance Practice Law Journal originally published in the fall of 2013 (Vol. 49-1) on the evolving landscape of the environmental and toxic tort areas of law. Toxic tort-related topics covered by this article include class action decisions … Continue Reading

Supreme Court Agrees to Review USEPA Regulation of Greenhouse Gas Emissions from Stationary Sources

On Tuesday, October 15, 2013, the United States Supreme Court agreed to hear challenges to the United States Environmental Protection Agency’s (USEPA) authority to regulate greenhouse gases emitted from stationary sources.  A total of nine petitions for certiorari had been filed with the Court challenging various regulatory actions taken by USEPA with respect to greenhouse … Continue Reading

Is Regulation of Greenhouse Gases Through the Clean Air Act Becoming “Too Big to Fail”?

In a much-publicized decision in 2007, the Supreme Court ruled that the United States Environmental Protection Agency (USEPA) is authorized to regulate greenhouse gases (GHGs) through the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497 (2007). A slew of recent cases have rejected plaintiffs’ attempts to assert common law claims for damages based on … Continue Reading

Sixth Circuit Court of Appeals Rules that USEPA May Proceed with an Enforcement Action against DTE Energy

On March 28, 2013, the Sixth Circuit Court of Appeals ruled that the U.S. Environmental Protection Agency (USEPA) did not need to wait until post-construction emissions data became available to challenge DTE Energy Corp.’s projection that a construction project was not a “major modification,” and, thus, did not require a New Source Review (NSR) construction … Continue Reading

Recent Developments in PM2.5, SO2 and CSAPR Rule Challenges

Natural Resources Defense Council v. USEPA: Court Rejects USEPA’S Approach to PM2.5 NAAQS Implementation Recently, the Circuit Court for the District of Columbia rejected the United States Environmental Protection Agency’s (USEPA’s) 2007 and 2008 rules implementing the 1997 national ambient air quality standard (NAAQS) for fine particulate matter having a diameter equal or less than … Continue Reading

Another Hurdle for GHG Suits as Ninth Circuit Affirms District Court Ruling in Kivalina v. ExxonMobil

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 … Continue Reading

DC Circuit Vacates CSAPR, Tells USEPA to Continue CAIR

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 … Continue Reading