Wednesday, May 29, 2013
May 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-1129, consolidated with 12-1130, 12-1134, 12-1135. On Consolidated Petitions for Review of Final Action of the U.S. EPA. The case considers challenges to EPA's revised emissions standards for secondary lead smelting facilities. The Appeals Court indicates that it finds petitioners' claims "unpersuasive, foreclosed by Circuit precedent, or otherwise barred from review" and denies in part and dismisses in part the petitions for review.
By way of background, in 2012, acting pursuant to sections 112(d)(6) and 112(f)(2), EPA revised the 1995 emissions standards for secondary lead smelting facilities, reducing allowable emissions by 90% -- from the 2.0 milligrams per dry standard cubic meter (mg/dscm) previously permitted to 0.2 mg/dscm -- and requiring smelters to totally enclose certain "fugitive" emission sources. Several industry groups and environmental groups filed petitions for review. Environmental and industry petitioners intervened as respondents in one another's cases, and RSR Corporation intervened both as a petitioner and as a respondent.
Industry petitioners first argue that the Secondary Lead Rule impermissibly regulates elemental lead as a HAP [hazardous air pollutants]. Secondly, they argue that the prevention of significant deterioration (PSD) program regulation of the substances is duplicative and unlawful. They also challenge EPA's methodology for estimating fugitive emissions and EPA's reliance on the estimates to conclude that total enclosure of fugitive emission sources was warranted; and they challenge the Rule's requirement of lead continuous emissions monitoring systems (CEMS). Industry petitioners also argued that EPA's decision to revise emissions standards under section 112(d)(6) was arbitrary and capricious, plus additional claims. All were rejected by the Appeals Court.
The Appeals Court indicates that environmental petitioners' challenge fails on the merits. Their primary argument is that, when EPA revises emissions standards under section 112(d)(6), it must recalculate the maximum achievable control technology in accordance with sections 112(d)(2) and (d)(3). The Appeals Court said their argument is barred by a previous 2008 decision. Next, they argue that EPA impermissibly considered cost in revising emissions standards under section 112(d)(6). The Appeals Court said, however, ". . .given that EPA has no obligation to recalculate the MACT floor when revising standards, see supra at 89, and given that section 112(d)(2) expressly authorizes cost consideration in other aspects of the standard-setting process, we believe this clear statement rule is satisfied."
Finally, the Appeals Court said, ". . .environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments -- namely, high efficiency particulate air (HEPA) filters and wet electrostatic precipitators (WESP). EPA reasonably explained that further reductions were unwarranted due to concerns about the feasibility, utility, cost-effectiveness, and adverse collateral environmental impacts associated with this technology, and petitioners point to no 'clear error of judgment' reflected in this reasoning." Additionally, one Justice concurred but wrote separately "to explain more completely why it is appropriate for us to hold that intervenor RSR Corporation lacks prudential standing."
Access the complete opinion (click here). [#Air, #Toxics, #CADC]
Posted by JPMcJ at 4:44 PM
May 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5095. Appealed from the United States District Court for the District of Columbia. The Appeals Court explains that, "Intervenor Sunflower Electric Power Corporation appeals the grant of summary judgment to the Sierra Club based on violations of the National Environmental Policy Act by the U.S. Department of Agriculture's Rural Utilities Service. The district court ruled that the Service unlawfully failed to prepare an environmental impact statement (EIS) before granting approvals and financial assistance to Sunflower's expansion of its coal-fired power plant, and remanded the matter to the Service, enjoining it from granting further approvals until it completed an EIS. We dismiss the appeal for lack of jurisdiction. This court lacks jurisdiction under 28 U.S.C. § 1291 because Sunflower appeals a non-final remand order that is not immediately appealable by a private party. This court lacks jurisdiction under§ 1292(a)(1) because the injunction serves no purpose beyond the remand."
The Appeals Court concludes, "Accordingly, because the injunction against the Service serves no function beyond the remand order, and pursuant to County of Los Angeles this court must ignore the injunction for jurisdictional purposes, we dismiss Sunflower's appeal for lack of jurisdiction. We thus can express no position on the merits of the injunction or Sunflower's contention that the Sierra Club's case was moot when filed. "If we lack jurisdiction, we cannot vacate the district court's order for lack of jurisdiction because we lack the power to do so." Defenders of Wildlife v. Perciasepe, ___ F.3d ___, 2013 WL 1729598, at *8 (D.C. Cir. April 23, 2013) [Note: See this decision below].
Access the complete opinion (click here). [#Energy/Coal, #CADC]
Posted by JPMcJ at 4:42 PM
Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5150. The Mingo Logan Coal Company (Mingo Logan) applied to the United States Army Corps of Engineers (Corps) for a permit under section 404 of the Clean Water Act (CWA) to discharge dredged or fill material from a mountain-top coal mine in West Virginia into three streams and their tributaries. The Corps -- acting on behalf of the Secretary of the Army (Secretary) and without objection from the Administrator of U.S. EPA (Administrator, EPA), who has 'veto' authority over discharge site selection under CWA subsection 404(c) issued the permit to Mingo Logan, approving the requested disposal sites for the discharged material. Four years later, EPA invoked its subsection 404(c) authority to "withdraw" the specifications of two of the streams as disposal sites, thereby prohibiting Mingo Logan from discharging into them.
Mingo Logan filed this action challenging EPA's withdrawal of the specified sites on the grounds that: (1) EPA lacks statutory authority to withdraw site specification after a permit has been issued; and (2) EPA's decision to do so was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The district court granted summary judgment to Mingo Logan on the first ground without reaching the second. The Appeals Court reversed the district court, concluding that EPA has "post-permit withdrawal authority," and remanded for further the case for proceedings.
The Appeals Court importantly looks at the statute and Congressional intent and indicates, "Section 404 imposes no temporal limit on the Administrator's authority to withdraw the Corps's specification but instead expressly empowers him to prohibit, restrict or withdraw the specification 'whenever' he makes a determination that the statutory 'unacceptable adverse effect' will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive conjunction "whenever," the Congress made plain its intent to grant the Administrator authority to prohibit / deny / restrict / withdraw a specification at any time."
The Appeals Court concludes, "For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit. Because the district court did not address the merits of Mingo Logan's APA challenge to the Final Determination and resolution of the issue is not clear on the present record, we follow our usual practice and remand the issue to the district court to address in the first instance."
At the time of the decision, environmental groups issued a release indicating, ". . .the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Environmental Protection Agency's legal authority to veto a mining permit that the U.S. Army Corps of Engineers had issued. The decision reverses the lower court's contrary ruling, and is a major blow to the coal industry's attempt to prevent EPA from protecting communities from the harm caused by mountaintop removal mining in Appalachia. The case will now go back to the D.C. District Court for briefing on other claims." Earthjustice, along with Appalachian Mountain Advocates, is representing West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, Sierra Club, and Natural Resources Defense Council as amici curiae (or "friends of the court") in support of EPA's veto in this case.
Access the complete opinion (click here). Access a release from environmental groups on the decision (click here). [#Energy/Coal, #Water, #CADC] [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.]
Posted by JPMcJ at 4:40 PM
Apr 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5112. Appeal from the United States District Court for the District of Columbia. As explained by the Appeals Court, Defenders of Wildlife and Sierra Club (collectively, Defenders) sued U.S. EPA based on EPA's alleged failure to promptly promulgate revisions to certain effluent limitations and effluent limitations guidelines under the Clean Water Act (CWA). When Defenders filed its complaint, it simultaneously filed a proposed consent decree -- signed by Defenders and EPA -- establishing a schedule for EPA to initiate notice-and comment rulemaking and make a formal decision whether to promulgate a new rule revising certain effluent limitations and effluent limitations guidelines. Utility Water Act Group (UWAG), an association of energy companies and three national trade associations of energy companies, moved to intervene but the district court denied UWAG's motion and entered the consent decree. UWAG appealed the denial of intervention and also asserts that -- "whatever our decision on the denial of intervention -- we should vacate the district court order entering the consent decree because the district court lacked subject matter jurisdiction. We disagree. We affirm the denial of intervention -- because UWAG lacks Article III standing -- and, as there is no appellant with standing, we dismiss the remainder of the appeal."
Access the complete opinion (click here). [#Water, #CADC] [Note: WIMS is reporting on this decision at this time because it was overlooked during our recent Spring break.]
Posted by JPMcJ at 4:38 PM