Obama clarifies succession to leadership at several environmental, science policy agencies

As is customary at the end of a President’s tenure, Barack Obama issued several executive orders and memoranda late last week that clarify the succession of leadership at federal agencies. Included were directives affecting the Council on Environmental Quality, Office of Science and Technology Policy, and Environmental Protection Agency.

The question of EPA’s leadership succession was the only one of the three to be addressed via executive order. Obama set out sixteen potential chief managers of the agency in the event the administrator or deputy administrator dies or resigns.

Gina McCarthy has been the 13th administrator of EPA since July 2013. Image courtesy Wikimedia.

While current administrator Gina McCarthy and acting deputy administrator Stan Meiburg have not said that they will leave office before noon on Friday – the time and date on which Obama’s administration ends – their successors may not be confirmed by the Senate before then.

EPA has not had a permanent deputy administrator since August 2014, when two-decade agency veteran Bob Perciasepe resigned to lead an environmental advocacy organization.

President-elect Donald J. Trump has nominated Oklahoma attorney general Scott Pruitt to lead EPA. Pruitt’s confirmation hearings before the Senate Environment and Public Works Committee are scheduled to begin on Jan. 18.

Once McCarthy leaves office on Friday, and if Meiburg also exits, then the succession at EPA will progress through the agency’s general counsel and then the assistant administrators for the Offices of Solid Waste, Chemical Safety and Pollution Prevention, Air and Radiation, Water, and Enforcement and Compliance Assurance.

Christy Goldfuss has led CEQ since 2015. Image courtesy The White House.

The Council on Environmental Quality, which is part of the Executive Office of the President, has not had a chairperson in place since Michael Boots resigned in March 2015.

Obama’s memoranda of Jan. 13 provides that the organization’s managing director, chief of staff, general counsel, associate director for National Environmental Policy Act, and, finally, other associate directors in order of appointment will succeed to its leadership.

Current managing director Christy Goldfuss has been leading CEQ since Boots left the White House staff. She is a former deputy director of the National Park Service and once worked as a staff member for the House Committee on Natural Resources.

The CEQ chair is subject to Senate confirmation.

Obama also ordered Friday that the associate directors for national security and international affairs, technology, science, and environment and energy will succeed, in that order, current OSTP director John P. Holdren if a new director is not in place by noon on Jan. 20.

Dr. John P. Holdren, a physicist and aerospace engineer, has led OSTP since 2009. Image courtesy The White House.

If the associate directors are no longer in office at that time, then OSTP’s chief of staff, deputy chief of staff and assistant director, and general counsel would be next in line.

Like CEQ, OSTP is part of the White House staff. Its director is also subject to Senate confirmation.

Trump has not named the next OSTP director.

Supreme Court rejects mercury emissions rule

The U.S. Supreme Court has rejected the Obama administration’s effort to limit emissions of mercury and other toxic air pollutants from coal-fired power plants.

The 5-4 decision held that the Environmental Protection Agency should have considered costs the regulations may impose on industry.

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia wrote for the majority.

The regulation was issued under a section of the Clean Air Act that demands that it be “appropriate and necessary.” The federal appeals court in Washington, D.C. had ruled that this clause of the CAA does not require EPA to consider compliance costs at the stage of deciding whether to regulate.

EPA has worked to impose limits on mercury emissions from electrical facilities for more than two decades. The agency decided in Dec. 2000 that the CAA standard of “appropriate and necessary” compelled regulation of power plant mercury emissions.

A predecessor to the current regulation, issued by President George W. Bush’s administration in Mar. 2005, was struck down by a federal appeals court in 2008.

The regulations at issue before the Supreme Court, formally known as the Mercury and Air Toxics Standards, were finalized in February 2012.

The agency argued that the regulation would produce public health benefits worth tens of billions of dollars.

The decision, which was supported by the five justices appointed by Republican Presidents, does not eliminate the legal effectiveness of the  regulations. Instead, the Court remanded the regulation to the agency, which basically means that EPA must reconsider it.

The case is Michigan v. Environmental Protection Agency, No. 14-46.

Obama administration to tighten controls on oil and gas industry’s methane emissions

Oil and gas exploration wells and associated infrastructure emit methane to the atmosphere. Methane is the second-most common greenhouse gas. Image courtesy Wikimedia.
Oil and gas exploration wells and associated infrastructure emit methane to the atmosphere. Methane is the second-most common greenhouse gas. Image courtesy Wikimedia.

The U.S. Environmental Protection Agency has decided to move forward with rules that could reduce methane emissions from oil and gas exploration wells and associated equipment by up to 45 percent by 2025.

The new regulations are expected to be proposed this summer and to be finalized in 2016.

“Achieving the Administration’s goal would save up to 180 billion cubic feet of natural gas in 2025, enough to heat more than 2 million homes for a year and continue to support businesses that manufacture and sell cost-effective technologies to identify, quantify, and reduce methane emissions,” a statement by the White House said.

The Wednesday announcement from the White House also said that the new regulations would limit volatile organic compound emissions from oil and gas infrastructure.

The new regulation, which is expected to be proposed during the coming summer, would apply only to new or altered oil and gas exploration or extraction systems, at least initially.

The White House said that it would encourage the oil and gas industry to voluntarily reduce emissions from existing oil and gas wells and associated pumps, booster and compressor stations, and well site delivery systems.

“If the reported target is correct, and if there’s a solid program offered to achieve it, then this is indeed a landmark moment,” Fred Krupp, president of Environmental Defense Fund, said in a statement released Tuesday after the New York Times reported the administration’s planned announcement. “Methane pollution is both an environmental problem and a needless waste of energy, and we need responsible oversight of an issue that industry has failed to address.”

Methane is the country’s second-most common contributor to atmospheric warming. It accounts for nine percent of U.S. greenhouse gas emissions but is a far more effective trapper of heat than carbon dioxide.

According to the most recent U.S. inventory of greenhouse gas emissions, during 2011 the country’s oil and gas producers leaked, flared, or vented enough methane to match the emissions of about 200 coal-fired power plants.

Administration efforts to limit methane emissions from oil and gas infrastructure on private lands are not the only planned federal programs aimed at cutting methane accumulation in the atmosphere. President Barack Obama called for inter-agency efforts to limit methane emissions in his March 2014 Climate Action Plan.

The U.S. Department of Interior’s Bureau of Land Management will likely propose one of the more impactful of those efforts this spring, a regulation that would limit methane emissions by oil and gas producers operating on U.S. public lands under its control.

Methane emissions from oil and gas facilities have declined by about 11 percent since 1990, according to the U.S. government’s 2014 greenhouse gas emissions inventory, but emissions of the compound have trended upward in recent years. Moreover, a paper published last year in Science suggested that such emissions may be under-estimated by as much as 50 percent.

Justices will not review Mingo Logan Coal Co. case

The U.S. Supreme Court has declined an opportunity to weigh in on the question whether the Environmental Protection Agency can veto a wetlands permit granted by the Army Corps of Engineers.

The justices released an order Monday denying the petition for certiorari in Mingo Logan Coal Co. v. EPA.

As a result of the order, the huge Spruce No. 1 coal mine in Logan County, W.Va. remains in limbo.  The U.S. Court of Appeals for the District of Columbia Circuit, which had upheld EPA’s veto authority in an April 2013 opinion, had ordered the case remanded to a federal trial court in Washington, D.C. The district judge will now consider other argument mounted by industry lawyers in their effort to get the largest mountaintop removal project in history into operation.

Should the project proceed, miles of environmentally sensitive streams and several thousand square miles of forest would be destroyed.

For background on this case, please read this post.

Supreme Court to decide whether to hear mountaintop removal case


The U.S. Supreme Court will decide Friday whether to wade into the years-long fight over the largest proposed mountaintop removal mining project in history.

During the justices’ traditional Friday conference they will consider a petition for certiorari filed by a mining company that plans to fill miles of streams, and several square miles of streamside forests, with the dirt and rock removed in a quest for coal that would strip away more than 3,100 acres of terrain.

The permit allowing the destruction was granted by the U.S. Army Corps of Engineers in 2007, then revoked by the Environmental Protection Agency in 2011.

The legal fight focuses on whether EPA has the power to withdraw a permit granted by another agency of the executive branch after the beneficiary of that permit begins to act in reliance on it. But the real stakes of the now 15-year old battle involve the fate of one of the most fecund regions in the world.

Mountaintop removal mining, one environmental advocate says, is akin to “erasing the most biologically diverse forest on Earth.”

“It’s really hard to understand the scope and scale of it even from the ground below it,” Vivian Stockman, a spokesperson for Ohio Valley Environmental Council, one of the organizations fighting the Mingo Logan wetlands fill permit, said.  “You eliminate layers of rock that’s above the coal and dismantle the mountain. All of that goes into the streams.”

The battle that will be discussed around the justices’ conference room table Friday morning began in 1998, when Hobet Mining Co., a subsidiary of the giant Arch Coal Co., proposed to build the Spruce No. 1 coal mine in Logan County, W.Va.

Environmentalists launched the fight against the project in 1999, convincing a federal court to overturn a permit needed by the mining company before it could fill streams and cover land with the debris that conceals coal seams. That decision was, for the most part, upheld by a federal appeals court and, after several years of wrangling over the extent of environmental impact review required before the permit could be granted, the Corps again granted the permit in January 2007.

Along the way the mining project was transferred from Hobet to Wharncliffe-W.Va.-based Mingo Logan Coal Co.

The Corps relied on a section of the Clean Water Act that establishes a system for conserving wetlands when it gave Mingo the permit needed to proceed with the Spruce No. 1 mine. Thirty-seven dump sites in Appalachian streams were approved by the Corps.

EPA withdrew the permit in January 2011. According to the agency, the approximately 110 million cubic yards of mine waste pollution approved by the Corps-issued permit would destroy more than seven miles of waterway, including about 6.6 miles of two entire streams that are among the most pristine in West Virginia, and cover about 3.5 square miles of forest land.

The affected streams, EPA said in a document explaining its decision, “have some of the greatest aquatic animal diversity of any area in North America, including one of the richest concentrations of salamander fauna in the world, as well as many endemic and rare species of mayflies, stoneflies and caddisflies.”

The riparian forest land is equally vital for wildlife. EPA explained that “[w]ith their adjacent riparian areas, these streams provide important habitat for 84 taxa of macroinvertebrates, up to 46 species of amphibians and reptiles, [four] species of crayfish, and [five] species of fish, as well as birds, bats, and other mammals.”

EPA also pointed out that rivers into which the affected streams flow would experience significant selenium pollution and increased salinity as a result of the pollution from the Spruce No. 1 mine.

Mingo Logan prevailed in a federal trial court after filing a lawsuit challenging EPA’s action, but the U.S. Court of Appeals for the District of Columbia Circuit reversed that victory last spring, rejecting an argument that EPA could not pull the permit after it was issued.

“Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ 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,” wrote Judge Karen LeCraft Henderson for a unanimous panel.

The statutory language at the core of the fight is found in section 1344(c) of the Clean Water Act:

“The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

The U.S. Department of Justice, in a response to Mingo’s petition for certiorari, argues that this language represents a compromise between the House of Representatives’ desire that the Corps have the final say on wetlands fill permits and the Senate’s intent that EPA have it.

The environmental community agrees with that take on the controversy.

“The industry is trying to blow this issue out of proportion,” Emma Cheuse, an attorney with Earthjustice who has represented environmental organizations opposed to the Spruce No. 1 mine, said. “EPA has had the authority under the CWA to serve as a backstop to protect clean water for decades.”

An EPA website indicates that the agency has invoked its section 1344(c) power only 13 times and Cheuse explained that, while the agency’s decision to reject the section 404 permit granted to Mingo is the first time it has exercised its veto power in the context of a dispute over mining-related water pollution, the agency has a solid factual record to justify its action.

“EPA made a decision here based on robust, strong, and scientific grounds that it provided,” she said.

But Lyle Denniston, a reporter at the respected SCOTUS blog who has covered the Supreme Court for more than half a century, said that he is not sure the question is as clear as the statutory language might lead a casual observer to believe.

“EPA has argued that it seldom has used this power, and Mingo argues that it has actually been used only once — in this case,” he said. “So the court may wonder whether the outcome has any implication for other factual situations.”

“I think that is quite a close question, not answered by the text — or at least debatable enough under the textual language that the court might very well want to clarify it — but, once again, only if it thinks the issue has wider implications,” he continued.

That is the position taken by Mingo and its supporters, who include 27 states and several business advocacy organizations.

Paul Clement, who served as the government’s chief advocate in the supreme court under former President George W. Bush, argued in the company’s petition for certiorari that Congress could not have intended EPA to have the power to revoke permission to fill wetlands, even a whole stream, after companies have invested large sums of money in projects that depend on elimination of a wetland.

“By holding that EPA may withdraw site specifications years after the Corps has issued a permit, the decision below destroys regulatory certainty and overturns the settled expectations of the regulated community,” he wrote.

The Obama administration disputes that analysis, telling the justices in a response to Mingo’s request for review of the D.C. Circuit decision that Congress’ understanding that EPA would interpret section 1344(c), and the agency’s long-standing record of reading the statute as a grant of authority to reject a permit after it is issued by the Corps, is entitled to deference from the Supreme Court.

 “An express delegation of rulemaking authority is the clearest sign of Congress’s intent that an agency will speak with the force of law when it interprets a statute. As relevant here, the CWA contains precisely such a delegation. . . One of [EPA’s] statutorily authorized functions is to withdraw specifications of disposal sites. The EPA therefore spoke with the force of law when it construed Section 1344(c) in its 1979 regulations, and when it subsequently published three post-permit final determinations after notice and comment and a public hearing (in 1981, in 1992, and in this case). And while the EPA has very rarely exercised its power to withdraw a specification after a permit has been issued, the agency has adhered since 1979 to the view that it possesses statutory authority to do so.”

The government’s argument on this point is based on a doctrine of administrative law that requires judges to defer to an agency’s interpretation of statutory language when there is any ambiguity present in it.

Should the Supreme Court agree to hear the case, it will likely consider it during the term that starts next October.

The case is Mingo Logan Coal Co. v. Environmental Protection Agency, No. 13-599.

Image courtesy Vivian Stockman, Ohio Valley Environmental Coalition.

Supreme Court asked to weigh in on EPA’s power to veto wetlands fill permits

A coal mining company fighting a decision by the U.S. Environmental Protection Agency to effectively veto a permit allowing disposal of mining waste in the streams of Appalachia has asked the Supreme Court to review the case.

The petition for certiorari in Mingo Logan Coal Co. v. United States Environmental Protection Agency was filed Nov. 13.

“Granting EPA this unprecedented power will chill private investment in critical sectors of the economy, where some $220 billion each year is contingent upon section 404 permits,” the petition argues.

The issue is of high importance to advocates working to prevent mountaintop removal mining.

Scientific studies show that the practice, which involves extensive deforestation in a region that contains a high degree of terrestrial biodiversity, also causes damage to aquatic ecosystems that is practically irreparable.

Human health impacts, including increased risk of cancer and heart, lung, and kidney disease, have been documented in areas where mountaintop removal mining occurs. A relatively higher frequency of birth defects in areas impacted by the practice has also been confirmed.

In 2007 the U.S. Army Corps of Engineers issued Mingo a permit to fill waterways with overburden from its Spruce Mine No. 1 in Logan County, W. Va.

In 2011 EPA demanded changes to the permit that were extensive enough to amount to an outright rejection of it.

The U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by Judge Karen L. Henderson – an appointee of former President George H.W. Bush – unanimously upheld EPA’s action. The other two judges that signed on to the panel’s opinion were Thomas B. Griffith and Brett Kavanagh, both appointed by George W. Bush.

The focus of the legal dispute is section 404(c) of the Clean Water Act. That provision of the CWA appears to give EPA authority to revoke a permit to fill a stream with mining debris (or any wetland with any other sort of fill material), even if the polluting activity has already commenced:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

Referring to this section of the CWA, upon which EPA relied in forcing changes to the Mingo permit, the D.C. Circuit wrote:

Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’ 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. . . [T]he Congress made plain its intent to grant the the Administrator authority to  prohibit/deny/restrict/withdraw a specification at any time.

Mingo Logan Coal Co. is represented by former  U.S. solicitor general Paul D. Clement in its effort to obtain Supreme Court review of the D.C. Circuit decision.

Supreme Court to take up narrow question related to EPA’s greenhouse gas regulatory authority

The U.S. Supreme Court announced Oct. 15 that it will review a narrow question related to the scope of the Environmental Protection Agency’s authority to regulate greenhouse gas emissions.

In its order, the court took the unusual step of crafting its own question on which certiorari was granted. The justices asked the parties to brief “whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

“Everybody’s scratching their head about the question they took,” Patrick Parenteau, a professor and senior counsel to the Natural Resources Law Clinic at Vermont Law School, said.

That question appears to be one that is well-settled. It arises from two regulations issued by EPA in the aftermath of the 2007 decision in Massachusetts v. Environmental Protection Agency.

In that case the court ruled that EPA must decide whether carbon dioxide is a pollutant subject to regulation under the Clean Air Act. The administration of former President George W. Bush had argued that EPA lacked the authority to regulate carbon dioxide emissions to the atmosphere.

Following the decision, EPA issued four rules. The first was a decision that carbon dioxide does pose a threat to public health. This endangerment finding set the stage for more specific regulations aimed at limiting emission of the greenhouse gas to the atmosphere by both mobile and stationary sources.

In June 2012, in a case called Coalition for Responsible Regulation v. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that the agency had the authority to issue the endangerment finding for carbon dioxide.

The second post-Massachusetts v. Environmental Protection Agency rule limited motor vehicle emissions. This tailpipe rule was finalized in 2010 and was also upheld by the U.S. Court of Appeals for the District of Columbia Circuit in the same case that involved an attack on the carbon dioxide endangerment finding.

The Supreme Court declined to grant review of either of those two aspects of the decision in the Coalition for Responsible Regulation case.

Following the finalization of the tailpipe rule, EPA next moved to regulate carbon dioxide emissions from stationary sources. To do this, the agency first announced a timing rule that specified the chronological conditions under which sources of carbon dioxide would become subject to regulation, making clear that stationary sources of carbon dioxide pollution would not be subject to emission limits until a specific rule focused on that subject was finalized, and then issued a tailoring rule that enunciated the statutory basis of that regulation.

That basis is section 202 of the Clean Air Act, which was also the foundation for the tailpipe rule. It is that linkage that prompted the attack on this part of the Obama administration’s climate change regulatory program that is now under review by the justices.

Under an interpretation of the statute that is several decades old, EPA concluded that, since carbon dioxide emissions are subject to regulation under section 202 of the Clean Air Act, stationary sources of the pollutant are likewise prone to regulation under two separate provisions of the law.

One, called the Prevention of Significant Deterioration of Air Quality program, requires state-issued permits for some stationary sources, such as steel mills and iron foundries, that discharge to the atmosphere more than 100 tons per year of “any pollutant” and other stationary sources that discharge “any pollutant” in an amount exceeding 250 tons per year.

The other is an entire section of the law that also applies to “any pollutant” and similarly imposes the 100 ton-per-year threshold.

The Coalition for Responsible Regulation court upheld this interpretation of the Clean Air Act and it is that interpretation that will now be reviewed by the Supreme Court.

“The crux of the case is going to come down to this question: Are the only sources that are covered by section 165, the requirement of a PSD permit, those that emit NAAQS pollutants?,” Parenteau said.

He was referring to the statutory section of the Clean Air Act that sets forth the prevention of significant deterioration of air quality requirements and the law’s classification of certain pollutants for which a particular kind of permit to discharge is required.

“That’s the industry’s argument,” Parenteau explained. “They say that carbon dioxide is not a NAAQS pollutant and, because they are not a hazardous air pollutant, the sources that emit carbon dioxide are simply not covered by section 165. Well, if you actually look at the text of section 165, you’ll see two things. One, it refers to ‘any air pollutant.’ Many years ago, EPA interpreted that phrase to mean ‘any air pollutant regulated under the Clean Air Act.’ That’s a long-standing interpretation. That’s not new.”

In 1980 EPA said that a stationary source would be subjected to review under the Clean Air Act’s PSD program if it “emit[s] any pollutant in major amounts . . . and [is] located in an area designated attainment or unclassifiable for that or any other pollutant.” The agency explained that “’any pollutant’” means “both criteria pollutants, for which national ambient air quality standards have been promulgated, and non-criteria pollutants subject to regulation under the Act.”

In 2002, during the George W. Bush administration, the agency reiterated this understanding of the Clean Air Act’s reach.

The tailoring rule recognizes that, because the agency’s interpretation of the statutory language could extend EPA’s regulatory reach to thousands of stationary sources, a limit on the size of affected sources is necessary. The rule is limited to new sources that emit at least 100,000 tons of carbon dioxide each year and existing sources that undergo a modification that would cause at least 75,000 tons per year to be discharged to the air.

Industry advocates have argued that EPA lacks the authority to limit the reach of its regulatory program under the Clean Air Act and, moreover, that the PSD provisions of the law on which that program is based are available only if the agency has first decided that the pollutant in question – in this case, carbon dioxide – is part of the National Ambient Air Quality System. The NAAQS, in turn, is limited to the pollutants, like those that make up the components of smog, that pose a danger to an individual’s health when breathed.

Parenteau thinks this argument is not likely to go very far because the language of the Clean Air Act does not limit EPA’s discretion in the way industry asserts it does.

“If you drive down further into section 165, you’ll see in (a)(3), there are three subsets referred to there,” he said. “One is NAAQS, but then it says ‘or’ any other emission standard under the act. My view is that the disjunctive gives EPA the authority.”

The relevant language of section 165(a)(3) of the Clean Air Act provides that

No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless –

. . .

(3) the owner or operator of such facility demonstrates, as required pursuant to section 7410 (j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any

(A) maximum allowable increase or maximum allowable concentration for any pollutant in any area to which this part applies more than one time per year,

(B) national ambient air quality standard in any air quality control region, or

(C) any other applicable emission standard or standard of performance under this chapter[.]

. . .

“I think EPA’s interpretation is reasonable,” Parenteau said. “I don’t see how the court can rule, as a matter of law, that this interpretation is not open to EPA as a matter of law.”

Given the views of at least two of the court’s conservative justices on the question whether to disregard clear statutory language in the face of contradictory or ambiguous legislative history, Parenteau’s point may be well-taken.

Justice Antonin Scalia, for example, has long eschewed the practice of looking to legislative history as a tool for understanding the meaning of a statute. He has, instead, asserted in opinions and books that a record of the debate by legislators on a bill offers no assistance to a judge at all.

For example, in one 2006 case Scalia wrote a concurring opinion in which he asserted that “[t]he use of legislative history is illegitimate and ill advised in the interpretation of any statute.”

Among the justices, Scalia is the most adamantly opposed to going beyond the text of a statute to decipher Congressional intent. Others, however, have also expressed caution about doing so.

For example, Justice Samuel Alito, while a circuit judge, wrote opinions on several occasions in which he explained his view that indicia of legislative intent found in committee reports and the like cannot override the plain language of a statute.

In one 1999 case, he made his view on the issue clear, writing that “even if I were convinced that Congress harbored some general purpose that was inconsistent with those specific provisions, I would follow the specific language that Congress duly enacted.”

Justice Anthony Kennedy was part of the majority in Massachusetts v. Environmental Protection Agency. He also signed on to the majority opinion in the 2011 case of American Electric Power v. Connecticut, which re-affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act.

Given that Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, and Elena Kagan have generally supported federal regulatory efforts relating to environmental protection, and that Ginsburg and Breyer agreed to the Massachusetts v. Environmental Protection Agency majority opinion, few, if any, observers of the court expect them to hold that EPA exceeded its authority in issuing the tailoring rule.

Parenteau suggested that it is possible the Supreme Court acted hastily in deciding whether to review the question of EPA’s authority to link regulation of stationary carbon dioxide pollution sources to the Clean Air Act’s provisions relating to motor vehicle emissions.

“It’s entirely possible that they’ll look at this case, see what EPA has done, and say it’s fine,” he said. “They might also say that EPA should have made a separate determination for stationary sources. To me, that’s a silly way to spend your time, to say you needed to be more clear about this.”

The cases are Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146; American Chemistry Council v. Environmental Protection Agency, No.12-1248; Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; and Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272.

A decision by the Supreme Court is expected by July 2014.

Image courtesy Wikimedia.

Justices do not decide whether to hear greenhouse gas cases at Supreme Court’s first conference of new term

The U.S. Supreme Court did not take an opportunity presented by its Sept. 30 conference to grant review of a court of appeals decision that upheld federal authority to regulate greenhouse gas emissions under the Clean Air Act.

The justices, meeting for the first time during the 2013-14 court term, issued no orders in response to nine petitions for certiorari related to the case.

The U.S. Court of Appeals for the District of Columbia Circuit held in June 2012 that EPA acted properly in designated carbon dioxide as a threat to public health and welfare under the Clean Air Act.

That endangerment finding is one of the core issues in the various requests for review of the D.C. Circuit ruling.

A 2007 decision of the Supreme Court known as Massachusetts v. Environmental Protection Agency forced EPA into that action by holding that the nation’s principal air pollution law compels the agency to impose regulations on greenhouse gas emissions.

The cases are American Chemistry Council v. Environmental Protection Agency, No. 12-1248; Coalition for Responsible Regulation v. Environmental Protection Agency, No. 12-1253; Chamber of Commerce of the United States v. Environmental Protection Agency, No. 12-1272; Energy Intensive Manufacturers Working  Group on Greenhouse Gas Regulation v. Environmental Protection Agency, No. 12-1254; Pacific Legal Foundation v. Environmental Protection Agency, No. 12-1153; Southeastern Legal Foundation v. Environmental Protection Agency, No. 12-1268; Texas v. Environmental Protection Agency, No. 12-1269; Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146 ; and Virginia v. Environmental Protection Agency, No. 12-1152.

Federal court orders EPA to regulate coal ash

A federal court has held that the U.S. Environmental Protection Agency must regulate the disposal of the toxic byproduct of coal-fired power plants into slurry ponds.

The decision comes in a case that turns on the application of the nation’s principal hazardous waste law, the Resource Conservation and Recovery Act.

In June 2010 EPA proposed a regulation that would tighten the current weak limits applicable to handling of coal conversion residues. However, the agency has declined to finalize it. 

The aim of the lawsuit is to force EPA to do so.

Coal combustion residues contain a variety of toxic metals, including arsenic, cadmium, lead, mercury, and selenium. EPA has identified at least 36 other heavy metals and other substances in CCRs.  

Discharge of CCRs by coal-fired power plants means that such facilities are the source of more than half of all the toxic pollutants discharged into the nation’s surface waters by permitted industrial facilities.

There are hundreds of CCR sites in the United States. According to an EPA web page, 45 of them are considered to pose a “high hazard.”

Judge Reggie B. Walton’s Sept. 30 memorandum order does not explain his reasoning beyond mention that the environmental group plaintiffs prevailed on their second cause of action listed in a complaint.

The litigation in which the order was issued does not relate to CCR discharges directly into surface waters, either as a result of leaking earthen dams or otherwise. That issue is the subject of a proposed rule announced by EPA last April. The agency faces a May 2014 deadline to finalize that regulation.

The Republican-dominated U.S. House of Representatives approved in July a bill that would strip EPA of any authority to regulate CCR disposal.

Coal ash pond failures in the past have proven to be highly destructive of the environment. A 1976 incident on Virginia’s Clinch River contaminated 90 miles of the watershed, killing several hundred thousand fish, while another in Dec. 2008 in eastern Tennessee released more than billion gallons of coal ash slurry into the Clinch and Emory rivers.

EPA proposes carbon dioxide limits for new power plants

The Obama administration made clear Friday that it will move forward with a regulatory agenda aimed at slowing climate change as the Environmental Protection Agency announced a proposed regulation that would limit carbon dioxide emissions from new power plants.

The proposed Carbon Pollution Standard for New Power Plants was announced at the National Press Club by EPA administrator Gina McCarthy.

The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences of climate change,” McCarthy said, according to prepared remarks. “We know this is not just about melting glaciers. Climate change – caused by carbon pollution – is one of the most significant public health threats of our time. That’s why EPA has been called to action.”

In 2007 the U.S. Supreme Court heldthat EPA must regulate emissions of carbon dioxide to the atmosphere because it is a pollutant that can harm public health and the environment. EPA issued the required “endangerment” findingin Dec. 2009, a decision that was upheldby the federal appeals court in Washington, DC in June 2012.

The endangerment finding relating to carbon dioxide prevents EPA from leaving carbon dioxide pollution of the atmosphere unregulated.

EPA has no choice but to adopt these regulations,” Patrick A. Parenteau, a professor of law at Vermont Law School, said. “What’s in the regulations is a subject of controversy and discussion. But they don’t have the ability to say ‘no, we won’t do it.’”

The rules announced Friday would, if finalized, distinguish between natural gas-fired power plants and coal-fired electricity generation facilities.

For large natural gas plants, a limit of 1,000 pounds of carbon dioxide per megawatt hour would be imposed; for smaller natural gas power plants, the cap would be 1,100 pounds of CO2 per megawatt hour.

Coal plants would not be allowed to emit more than 1,100 pounds of CO2 per megawatt hour. The regulation provides an avenue for coal plant operators to have some additional flexibility as to the limit by allowing them to average emissions over several years, but only if a coal plant operator agreed to accept a more stringent emissions cap.

The core of the rules, and an aspect that may serve as the prop for an expected legal attack by the affected industries, is a requirement that coal-fired power plants capture and store the carbon dioxide they now emit to the atmosphere.

Widespread adoption of the technology has been resisted by the industry on grounds that it may cause an increase in the cost of producing electricity and consume a large proportion of the energy produced by a power plant.

The environmental community generally welcomed Friday’s announcement, lauding the administration’s action as an important step toward a functional national system of greenhouse gas emission controls.

The standard makes clear that tomorrow’s power plants won’t be built at the expense of our children’s future,” Natural Resources Defense Council president Francis Beineke said in a statement. “It signals that we’re moving, as a country, to the clean energy solutions we need. And it will help safeguard the most vulnerable among us—our children and elderly people—from smog worsened by climate change.”

Environmental Defense Fund president Fred Krupp emphasized the potential mitigation of extreme weather events that might be provided by the proposed new source performance standard.

“As communities across our country struggle with terrible floods, droughts, and wildfires, these standards will finally put a limit on the carbon pollution that new power plants emit into our skies,” he said in a statement. “Cleaner power generation will protect our children from dangerous smog, extreme weather, and other serious climate impacts, and ensure that America leads the world in the race to develop cleaner, safer power technologies.”

The coal and electric utility industries, meanwhile, wasted little time before expressing its displeasure.

“We intend to  make all the arguments we can against the EPA’s proposed regulation because taking away the option to build efficient new coal-fueled power plants is bad policy,” Robert M. Duncan, the president and chief executive officer of the American Coalition for Clean Coal Electricity, said in a statement.

ACCCE is a coalition of electric utility and coal interests.

Duncan also suggested that litigation challenging the proposed rules is likely.  

Parenteau said that any litigation challenging the new rules would succeed only if it convinces a panel of federal appeals court judges that an equally effective, less expensive pollution control technology is available to power plant operators.

That legal obstacle is daunting. A decision of the U.S. Court of Appeals for the District of Columbia Circuit in 1973 held that a technology-forcing rule “may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants.”

That decision, in a case called Portland Cement Association v. Ruckelshaus, does constrain EPA’s discretion to some extent, as it imposes a “reasonableness” standard on the agency. A technology-forcing rule, the court said, “cannot be based on a ‘crystal ball’ inquiry.”

The proposed rule argues that CCS technology has been implemented around the nation, though several of the examples mentioned in it involve electricity generation facilities. However, none of those have actually sequestered carbon dioxide emissions.

The financial costs of compliance may prove less likely to supply a winning argument for industry. A 1999 decisionof the D.C. Circuit held that EPA’s choice of a technology mandate “will be sustained unless the environmental or economic costs of using the technology are exorbitant.”

Other cases have provided some clarity to that definition, holding that a maximum achievable control technology requirement included in an emissions regulation will not be rejected unless the costs imposed by the requirement are so high as to threaten the existence of the industry.

These legal arguments will be relevant only if the Supreme Court does not re-visit its Massachusetts v. Environmental Protection Agency ruling. The justices are expected to decide, early in the new court term, whether to grant review of an appeals court decision that upheld EPA’s endangerment finding.

It’s very unlikely that the Supreme Court would grant review,” Parenteau said. “If for some reason they ruled that the EPA endangerment finding is flawed, then the house of cards falls down. That’s the foundational finding for all these rules. Everything depends on that endangerment finding.”

Parenteau explained that he thought the odds of a reversal of Massachusetts v. EPA were quite low.

“I think it’s less than a one percent chance that the Supreme Court would get five votes to challenge EPA on that,” he said.

“If the industry wants to challenge, sure, it’s going to be expensive, but what’s going to be better?” Parenteau said. “They’re going to have come forward with a better technology.”

Some members of Congress, especially those who represent coal-producing states, are staking out a backstop in case litigation proves unable to stop EPA’s effort to regulate the CO2 emissions of new power plants.

Sen. Joe Manchin, D-W.Va., issued a blistering statement accusing the Obama administration of being an “adversary” of the coal industry.

“Today’s announcement of the EPA’s new source performance standard is direct evidence that this Administration is trying to hold the coal industry to impossible standards,” he said.

Sen. Mitch McConnell, a Kentucky Republican and the chamber’s minority leader, said Friday that he would invoke a rarely-used legislative procedure in an effort to block the rules.

“I will file a resolution of disapproval under the Congressional Review Act to ensure a vote to stop this devastating EPA rule,” he said in a statement.

Assuming that a CRA resolution could get passed by the Democratic-controlled Senate, it is not likely that it would be signed into law by the president. President Barack Obama signaled his commitment to an effort to rein in power plant greenhouse gas emissions when he announced a comprehensive climate change policy earlier in the year.

EPA is also working on greenhouse gas emission standards for existing electricity generation facilities.

“[W]e are committed to act on existing plants, too,” McCarthy said Friday. “However, those proposed standards are on a longer timeline. We plan to release a proposal for public comment in June of next year.”

Photo courtesy Wikimedia. 

NOTE: This article also appears at Examiner.com.