Category: Blog Posts


Environmental Deregulatory Landscape in 2019

President Trump believes that “an ever-growing maze of regulations, rules, restrictions [sic] has cost our country trillions and trillions of dollars, millions of jobs, countless American factories, and devastated many industries.”[1] He campaigned on the promise to eliminate the Environmental Protection Agency (“EPA”) “in almost every form,” leaving “only tidbits” intact.[2] According to the White House, “President Trump has reduced a historic number of burdensome and unnecessary regulations and stopped the massive growth of new regulations.”[3] The Administration’s environmental deregulatory agenda includes 85 rollbacks in air pollution and emissions standards, drilling and extracting, infrastructure and planning, wildlife protection, toxic substances and safety, and water pollution.[4] In the EPA’s FY 2020 Budget in Brief, the stated mission of the EPA is to “protect human health and the environment,” and according to the EPA, “we can all agree that we want a clean, healthy environment that supports a thriving economy.”[5] The report went on to say, “[e]nvironmental stewardship that supports a growing economy is essential to the American way of life and key to economic success and competitiveness.”[6]

The Administration’s most recent deregulatory success came with abandoning the Obama-era definition of what qualifies as “waters of the United States,” which provided enhanced protections for wetlands and smaller waterways. Under the new Rule, only wetlands “that are adjacent to a major body of water, or ones that are connected to a major waterway by surface water” will be federally protected.[7] The EPA gave four reasons for repealing the 2015 Clean Water Rule: (1) the Rule exceeded the agencies implementing authority based on Justice Kennedy’s significant nexus test in Rapanos;[8] (2) the Rule failed to adequately consider that it is the responsibility and right of the States to protect and “plan the development and use . . . of land and water resources’”; (3) to avoid future unconstitutional land encroachments by the federal government; and (4) the “distance-based limitations” suffer from “procedural errors” and lack “adequate record support.”[9] At a press hearing for the repeal, EPA Administrator, Andrew Wheeler, said that the EPA is “delivering on the president’s regulatory reform agenda,” and the agency is working on 45 more deregulatory actions.[10]

Critics of the Administration’s deregulatory agenda in the EPA have come just short of classifying it as “regulatory capture.”[11] Regulatory capture occurs when agency regulation departs from the public interest, and is directed towards the regulated industry. Although falling short of regulatory capture, critics believe the Administration’s actions show “an ambitious, intensifying movement to cripple the EPA’s capacity to confront polluting industries and promote public and environmental health.”[12] They further contend that the consequences of this deregulatory agenda “will likely fall hardest on vulnerable social groups, such as low-income communities, farmworkers, and first responders.”[13] On the other hand, proponents of the Administrations regulatory reform agenda are celebrating how the “Environmental Protection Agency managed to exceed its deregulatory goal” of removing two rules for every one they proposed.[14]

In addition to deregulation, the EPA has proposed to eliminate 41 current EPA programs and sub-programs while drastically cutting its budget in 2020. The EPA’s FY 2020 Budget in Brief requested $6.068 billion, which “represents a $2.76 billion, or 31 percent reduction from the Agency’s FY 2019 Annualized Continuing Resolution.”[15] The EPA contends that this budget is sufficient to support its “highest priorities” and fulfill its “critical mission for the American people.”[16] Among the programs to be cut are: Environmental Education, Pollution Prevention, Reducing Lead in Drinking Water, Regional Science and Technology and Water Quality Research and Support Grants.[17] While it is unlikely that the proposed budget cuts will be approved by Congress, the FY2020 Budget in Brief signifies a continued departure from the Obama-era expansion of the EPA.

With 85 environmental regulatory rollbacks, a proposed 31 percent reduction in funds, and the elimination of “funding for fourteen voluntary climate-related partnership programs,” President Trump is delivering on his campaign promise to eliminate the EPA “in almost every form.”[18] While the Administration continues to deliver on its promise, according to a 2019 Gallup Poll, “[b]y the widest margin since 2000, more Americans believe environmental protection should take precedence over economic growth when the two goals conflict.”[19] Currently, sixty-five percent of Americans, Republican and Democrat, believe that the environment should take priority over “a thriving economy.”[20]

While President Trump has not managed to eliminate the EPA “in every form,” he has managed to erode many of the environmental law principles which guided the agency for many years. Many States are pushing back against the Administration’s deregulatory agenda and countless lawsuits challenging their actions have been filed.

*Featured Image: 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019).

[1] President Donald J. Trump’s Historic Deregulatory Actions are Benefiting American Families, Workers, and Businesses The White House, (last visited Sep 15, 2019).

[2] The Fox News GOP debate transcript, annotated The Washington Post, (last visited Sep 15, 2019).

[3] The Office of White House, supra, n. 1.

[4] Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, 84 Environmental Rules Being Rolled Back Under Trump, The New York Times (Sept. 12, 2019), (last visited Sep 15, 2019) (A New York Times analysis, based on research from Harvard Law School and Columbia Law School).

[5] FY 2020 EPA Budget in Brief, p. 1 (March 2019),

[6] Id.

[7] Bill Chappell, EPA Makes Rollback Of Clean Water Rules Official, Repealing 2015 Protections, NPR, (last visited Sep 15, 2019).

[8] Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006).

[9] Definition of “Waters of the United States” – Recodification of Pre-Existing Rules (Pre-Publication Version) EPA (Sept. 12, 2019), (last visited Sep 15, 2019) (quoting 33 U.S.C. 1251(b)).

[10] Id.

[11] Lindsey Dillon et al., the “EPA Under Siege” Writing Group, The Environmental Protection Agency in the Early Trump Administration: Prelude to Regulatory Capture, NCBI, S90 (2018),

[12] Id.

[13] Id.

[14]EPA exceeds 2-for-1 deregulation goal set by Trump administration, Federal News Network, (Sept. 3, 2019), (last visited Sept. 23, 2019).

[15] FY 2020, supra, n. 5 at 1-2.

[16] Id. at 2.

[17] Id. at 89-93.

[18] Id. at 94.

[19] Lydia Saad, Preference for Environment Over Economy Largest Since 2000, Gallup (April 4, 2019) (“Results for this Gallup poll are based on telephone interviews conducted March 1-10, 2019, with a random sample of 1,039 adults, aged 18 and older, living in all 50 U.S. states and the District of Columbia. For results based on the total sample of national adults, the margin of sampling error is ±4 percentage points at the 95% confidence level”) (last visited September 18, 2019).

[20] See FY2020, supra, n. 5.

[BLOG, Apr. 5, 2016] A Change of Balance: Scalia’s Legacy and his Successor’s Mark by Phil Musolf

A Loss for Court and Country

On February 13, 2016, Justice Antonin Scalia passed away from natural causes.  Political rhetoric and American society polarized Justice Scalia’s opinions in life.  While he leaves a charged legacy, this Justice leaves a great void within the Supreme Court of the United States.

Justice Scalia was famously known for his judicial wit, lively persona, and a strong constitutional judicial philosophy.  Scalia was never known as a consensus builder on the court.  He was more well-known for his colorful dissents than his majority opinions.  Some of his more famous lines involving certain opposing arguments were: “pure applesauce.”[1]  A famous oral line of questioning occurred during the arguments for the Patient Protection and Affordable Health Care Act.  Scalia suggested an attorney’s logic might grant the government the power to “make people buy broccoli.”[2]  Scalia used colorful language and a forward, almost silly style to shed light on important logical and legal arguments.  In many ways, his use of language encouraged engagement with the American public, and held the attention of many young law students.

Scalia’s Environmental History

Many environmental proponents claimed Scalia was no friend of environmentally conscious judicial action (or inaction).  Scalia staunchly attacked and criticized the EPA’s regulations and their ways of applying statutory laws.  While suggesting Scalia was not a great friend to the environment might be generally accurate, it fails to give credence to Scalia’s judicial philosophy and analysis of each case.  His application of statutory law and constitutional principles during his time on the court prevented overreach and misuse of agency authority.  At least that’s what Scalia might say were he alive today.

At the beginning of his tenure some of the first rulings interpreted statutes to assist environmentally protective laws.  A 2001 opinion of his found that the Clean Air Act did not require the EPA to consider costs of implementation when creating the guidelines for the national ambient air quality standards.  Justice Scalia wrote that a section of the Clean Air Act, “unambiguously bars cost considerations from the NAAQS-setting process…”[3]  This case allowed the US EPA to design air pollutant controls upon health measures, rather than economic ones.  The case was found to be a tremendous victory for environmentalists.  In 1994, Scalia wrote the court opinion preventing the City of Chicago from dumping incinerator ash into landfills not permitted for handling hazardous wastes.[4]  Scalia analyzed a comprehensive hazardous waste statute, finding that when Chicago burned residential waste, the ash created by the city was a new hazardous waste.  The newly created hazardous waste was then subject to statutory requirements including disposal, reporting, and other types of extensive regulations.  However, these outcomes were not typical of Justice Scalia.

He was better known for interpreting environmental and energy issues in a way which hurt environmental protections and limited the EPA’s discretion.  In one of his first important environmental cases, an issue that needed to be addressed was one of public standing to sue.  In this 1992 decision, Justice Scalia limited the ability for individuals to sue administrative officials under the Endangered Species Act.  Essentially, Scalia suggested that a possible future threat of extinction in species is not imminent enough to grant an injury and thus standing.[5]  Justice Scalia took part in a somewhat split decision when interpreting the Clean Water Act.  The 2006 case attempted to reinterpret how the US EPA defined waterways within the US.  Justice Scalia, with four other justices, released an opinion which shrunk the definition. His opinion wanted to define waterways as “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features” rather than all interconnected bodies of water.[6]  While this case was a plurality decision leaving much open for debate, the decision written by Scalia created a reassessment about how the Clean Water Act protected water resources.

Justice Scalia also opposed the way the EPA enforced the Clean Air Act.  Scalia often believed that the EPA misinterpreted the authority of that act.  In Massachusetts v. EPA, the Supreme Court ruled that the EPA could regulate greenhouse gas emissions for motor vehicles.[7]  This case appears to be one of the biggest cases in a generation and this gives the EPA a great power to regulate carbon emissions.  Scalia joined the dissent.  The dissent, however, appears to go against a previously supported case, Chevron v. Natural resources Defense Council, IncChevron gave extensive agency deference when there was vague statutory guidance.[8]  Despite the dissent, the Obama administration took notice of the decision and is attempting to regulate greenhouse gas emissions for stationary sources.  This action led to another case involving the Air Toxics rule.  In Michigan v. EPA, Justice Scalia wrote the decision which decided that costs must be considered when the EPA is regulating certain regulated facilities under the Clean Air Act.[9]  This case seemed to be in contention with a prior decision, Whitman.  However, Justice Scalia used the statutory framework in that section of the Clean Air Act to attempt to avoid the inconsistency of Whitman.  Despite some obvious opposition, Scalia used his gifts of reason, logic, and writing to somewhat avoid that inconsistency.  In a sense, Justice Scalia continued his legacy of being strict in interpreting judicial statutes within the environmental realm.

Future for Successor

As always, the Supreme Court has very serious issues to consider in the future.  Many environmental interpretations are split very closely, and the successor to Justice Scalia will surely affect nearly all of the outcomes.  The Clean Power Plan is currently in litigation, and while a decision may not be ultimately decided for another year, a new appointee will be on the court to decide.  The Supreme Court voted 5-4 in favor of issuing a stay against EPA regulations.  That was unprecedented for the type of stay and that type of action is only allowed when there are serious constitutional concerns.  With a loss of Justice Scalia, the courts replacement may certainly hold the verdict in their hands.

Another important recent Supreme Court case addressed the longstanding Chevron Doctrine.  In King v. Burwell, the Supreme Court prevented the IRS agency action when applying a new part of the Affordable Care Act.[10]  The case ultimately suggested that the Chevron Doctrine may not be ironclad. The case stated that the doctrine does not apply when there are very important reasons to avoid agency interpretation of the statute.  Both of these two looming Supreme Court cases involve agency action, and serious environmental concerns.  Any Supreme Court nominee will surely affect the outcome of the court, our government, and the health of the planet.

At this time, President Obama has nominated Chief Judge Merrick B. Garland of the D.C. circuit court to fill Justice Scalia’s vacant seat.  The status of the political climate suggests this nomination is no guarantee.  While there are also no guarantees of how a justice will act once they are on the court, it does appear that Chief Judge Garland may support agency discretion.  He has sided with governmental agencies in many of his rulings.  In a third of the Chief Justices dissents, he has argued that agencies should have lenient discretion. [11]  This benchmark bodes well for the future of the EPA and subsequent presidential administrations.  The more leniency an agency has, the more discretion presidents have in fulfilling their agenda.  If Chief Justice Garland becomes appointed, it appears he would allow agencies and their presidential boss the discretion to do their jobs.  That is, of course, their jobs as they see fit.


[1] King v. Burwell, 135 S.Ct. 2480, at 2501 (2015).

[2] “National federation of Independent Business v. Sebelius.”  Oyez Chicago-Kent College of Law at Illinois Tech, n.d. Apr 4, 2016.

[3] Whitman v. American Trucking Associations, Inc., 531 U.S. 457, at 471 (2001).

[4] City of Chicago v. Environmental Defense Fund, 114 S.Ct. 1588 (1994).

[5] Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992).

[6] Rapanos v. US, 517 U.S. 715, at 715 (2006).

[7] Massachusetts v. EPA, 549 U.S. 497 (2007).

[8] Chevron v. Natural resources Defense Council, Inc., 104 S.Ct. 2778 (1984).

[9] Michigan v. EPA, 135 S. Ct. 2699 (2015).

[10] King v. Burwell, 135 S.Ct. 2480 (2015).

[11] Page, Samantha, Think Progress,  April 4, 2016.

[BLOG, Feb. 24, 2016] The Clean Power Plan: Staying up to date, with the Stay by Phil Musolf

Main Headline

The Paris climate talks have come and gone. Real progress resulted in an agreement which might hold global temperatures below the catastrophic cliff which would lead climate change into apocalypse.[1] However, the U.S. Environmental Protection Agency (EPA) already began the process to significantly reduce carbon emissions. The international meeting briefly interrupted agency action which might drastically affect carbon emissions coming from U.S. entities.

In 2007, the Supreme Court created legal reasoning which suggested the EPA may regulate greenhouse gas emissions under the Clean Air Act. In Massachusetts v. EPA, the Supreme Court found that the EPA has the power to regulate greenhouse gas emissions in vehicles, but only if those emissions were found to contribute to climate change.[2] The Obama Administration took notice of this decision, and decided during its tenure to expand regulation of greenhouse gases. Instead of vehicles, the EPA is now attempting to regulate stationary sources with Massachusetts v. EPA as legal support.

In June, 2014, the Obama Administration announced the Clean Power Plan (CPP) proposal. Per statute, the proposal was open for public comment period. The comment period was extended after receiving extensive interest from interested parties and the public. The federal Clean Power Plan was proposed later on August 3, 2015. This updated proposal included changes allowing greater flexibility and it removed certain required programs which had dangerous constitutional questions attached. The federal register published the Clean Power Plan final rule on October 23, 2015.

Major Components

The Clean Power Plan attempts to address the whole fleet of power generation, rather than each individual source. The Clean Power Plan is currently built around several main “building blocks” to address carbon emissions. These include:

  1. Increasing efficiency of fossil fuel generation.
  2. Shifting fleets from higher emitting coal to lower emitting natural gas.
  3. Converting to zero-emitting renewable energy.   (This section changed to allow state programs to include under construction nuclear & upgradeable nuclear plants)

The CPP includes proposal of major sub-parts. These sections include strengthening for environmental justice community concerns so that changes in emission locations do not impact the most vulnerable communities. There is also a Clean Energy Incentive Program (CEIP). The voluntary program incentivizes states to update energy efficiency in low-income communities. The program also incentivizes investment in renewable energy programs. These programs gain benefits from 2020-2021. The CEIP was originally a main building block in the original Clean Power Plan, but possible legal concerns removed the program as a mandatory requirement. Lastly, the Clean Power Plan intends to start cap-and-trade programs between facilities and states. This program allows generated pollution credits to be traded to increase flexibility. The program incentivizes cleaner facilities and discourages carbon generating facilities.

Current Litigation

Current litigation began in October, 2015 from 24 states filing against the EPA (this number has risen). The complaint argues that when a source is regulated under Section 112 of the Clean Air Act (CAA), that same source may not also be regulated under Section 111(d). Ultimately, the states and utilities opposing the plan are claiming that it is overstepping the CAA because it regulates not only sources but owners, operators, and the entire electric grid. The EPA suggests that House and Senate language used in the 1990 Amendment is merely to avoid duplicating regulation of pollutants, not duplicating regulation of sources.[3]

Opposing states and utilities have attempted to prohibit the EPA from moving forward with the CPP. These states filed an emergency stay of the Clean Power Plan attempting to delay the initiation of the EPA rules until after judicial rulings. This emergency stay filed by the states has been subsequently denied.

However, several days after on January 27th, 2016, a conglomeration of utilities filed an application of emergency stay. The utilities are claiming there will be irreparable harm if final agency action is not delayed. The Utilities suggest immediate investment, research, and resources will be directed towards developing the technologies which are required to meet the new EPA standards. The Utilities are claiming that the EPA does not have relevant expertise in designing electrical grid requirements. Expertise is required for agencies to issue mandates on the industry.[4] The EPA has new legal support in a recent Supreme Court decision. In FERC v. Electricity Power Supply Association, the Supreme Court recently stated that a federal agency could deal with electricity rates as well as “any rule or practice ‘affecting’ such rates.”[5] The EPA hoped that the Supreme Court would have found similar logic for the EPA to apply green-house gas emission rules.

On February 9th, 2016, the Supreme Court ruled in favor of the stay. The order said very little in regards to merits of the case. The order states merely that the vote was 5-4 with Breyer, Sotomayor, Kagan, and Ginsburg in the dissent. The ruling suggests some serious concerns with the EPA rules as stays are typically awarded only when there is a high chance to win on the merits of the case. There will be very little time for utilities and energy companies to prepare for upgrades, so some power companies are already preparing for reducing emissions.[6]

Currently, the EPA has a deadline of September, 2016 for states. This deadline requires states to file an initial proposal or request an extension. An extension grants an additional two years to develop a complete plan (September, 2018). Initial reductions of compliance do not begin until January, 2022, but if states participate in the Clean Energy Incentive Program they can receive benefits as early as 2020 continuing through 2021. Clean Power Plan proponents believe that these are reasonable deadlines for states and the industry to meet. Utilities have suggested that these types of changes will take between three to seventeen years to accomplish.[7]

The Court is prioritizing this case, and has pushed for a rapid timetable. The Court scheduled oral arguments for June 2nd.[8] This will likely allow the decision by the Court to be published before the September deadline.


[1] Davenport, Coral, The New York Times, (accessed February 4, 2016)

[2] Massachusetts v. EPA, 549 US 497 (2007)

[3]Gilmer, Ellen M., E&E Reporer, (accessed, February 4, 2016)

[4] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 11-12, January 27, 2016.; King v. Burwell, 135 S.Ct.2480 (2015)

[5] FERC v. Electric Power Supply Association, No. 14-840, Slip Op at 1 (US, January 25, 2016),

[6] The Detroit News,, February 12, 2016

[7] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 12, January 27, 2016.

[8] Wolf, Richard, USA Today,

[BLOG, Sept. 4, 2014] Primer on the 2013 Illinois Hydraulic Fracturing Act, By Richard Lintermans

On June 17th, 2013, Illinois Governor Pat Quinn signed Public Act 98-22 – the Illinois Hydraulic Fracturing Regulatory Act (Act). The contents of the Act have been compiled into 225 Ill. Comp. Stat. 732 (2013) and 35 Ill. Comp. Stat. 450 (2013). The Act provides for the regulation of high volume horizontal hydraulic fracturing (fracking) activities in Illinois. Its provisions were effective immediately. The legislation has no impact on low-pressure vertical hydraulic fracturing activities.

Oil drilling in Illinois first occurred near Champaign in 1853. By far the biggest currently known oil and gas reserve contained within Illinois is the New Albany Shale formation. The formation’s highest anticipated area of opportunity is concentrated in south-east Illinois. The perimeter of the formation extends into Southwest Indiana, Western Kentucky and Western Tennessee. Drilling first occurred into the formation in the 1860s.   Since then, more than 500 oil and gas wells have been drilled into the formation. To date, the wells in Illinois have primarily been small scale vertical wells using low-pressure injection techniques. With recent gains in fracking technology, interest in exploring the oil and gas opportunities provided by the formation has significantly increased.

The Act was formulated in an effort to pro-actively regulate fracking before it became wide-spread in Illinois. A coalition of industry, environmental groups, legislators, regulatory and enforcement agencies negotiated the details of the Act before it came to a vote. As a result, there was broad support for the provisions of the Act.

Key provisions of the Act are as follows:

  • Illinois Department of Natural Resources (IDNR) is the regulatory agency tasked with drafting and implementing rulemaking, as well as enforcement.
  • Operators must register with IDNR at least 30 days before submitting a permit application. Registration involves financial disclosure by the registering entity, disclosure of related entities, disclosure of previous violations, a description of the proposed operations in detail and proof of minimum liability insurance of $5 million.
  • Once registered, operators can apply for a permit from IDNR for proposed activities. The permit must contain detailed information regarding the proposed activity, including disclosure of each chemical to be used, as well as plans for containment of the well, fluid storage and traffic management plans. This information is provided to all property owners within 1,500 feet of the well site. It also must be posted in the local newspaper. The information is also shared with a number of state agencies. A public hearing will be held if requested (by the public) to be adjudicated by an administrative law judge, based upon the disclosures contained within the application. IDNR is required to issue the resulting permit, if approved, within 60 days of the application.
  • Storage of fracking fluid prior to injection, and flowback following injection, must be contained in closed tanks. Storage in open, lined pits is permitted on a temporary basis.
  • Within 60 days of completing its activity, the permittee must submit a completion report, including disclosure of chemicals actually used.
  • All chemicals used in the process must be disclosed to IDNR. Absent designation as a trade-secret, this information will also be made available to the public. If it is deemed a trade-secret, general public disclosure will not occur, but the information will be made available to health providers and public health officials by IDNR. The public can also challenge the trade secret designation.
  • Water quality monitoring will begin at each site prior to the commencement of fracking activities. If water contamination is discovered within 30 months of the completion of activities, there will be a rebuttable presumption that the fracking activities are responsible for the contamination. The permittee will have the burden to prove otherwise.
  • Well construction standards using best practices are incorporated.
  • Setbacks are required from water sources, neighbors, and nature preserves.

The IDNR is currently engaged in the rulemaking process. Once the proposed rules are complete, they will be subject to review and approval by the Joint Committee on Administrative Rules, a bi-partisan legislative oversight committee. Once the proposed rules are finalized, permits can be issued. This is expected to occur mid-2014. Until rules are finalized, no permits can be issued. The only activity operators have engaged in to date under the Act is registration.

All parties involved claim a benefit: industry wanted certainty, environmental groups wanted strong controls and the state wanted a means to balance economic opportunity with environmental considerations. Many of the parties involved claim it is a model act which could have far reaching implications for other jurisdictions interested in addressing the regulation of fracking activities.

Until the Act is fully implemented, its impact in Illinois cannot be determined. The ultimate feasibility of oil and gas development activities in Illinois will depend upon the productivity of the shale. If it produces primarily natural gas, absent an increase in natural gas prices, productivity will be limited. If, on the other hand, oil is produced in substantial quantities, the shale’s productivity will be much higher. Until the Act is fully implemented, and the shale can be further explored, the ultimate production possibilities are unknown.


225 Ill. Comp. Stat. 732 (2013)

35 Ill. Comp. Stat. 450 (2013)

Upstream Pumping Solutions, The New Albany Shale, (accessed November 5, 2013).

ProPublica, What is Hydraulic (accessed November 3, 2013)

Best, Robert, Partner, K&L Gates & Cassel, Jennifer, Staff Atty., Env. Law & Policy Ctr., Speech,The Illinois Hydraulic Fracturing Regulatory Act: Perspectives from environmentalists and industry on the history and future of Illinois fracking law (Chicago, Ill. Oct. 24, 2013) (archive available at the Chicago Bar Association YLS Environmental Law Committee)

[BLOG, Sept. 4, 2014] 2013-2014 Supreme Court Review of Cross State Air Pollution Rules, By Richard Lintermans

On December 10, 2013, the U.S. Supreme Court (“Court”) heard oral arguments on the permissibility of the U.S. Environmental Protection Agency’s (“EPA”) most recent attempt to regulate interstate air pollution. A decision on the matter is anticipated by June 2014.

The Clean Air Act (“CAA”) instructs the EPA to publish National Ambient Air Quality Standards (“NAAQS”). When new NAAQS are published, States traditionally submit plans to the EPA detailing how they will comply with the promulgated NAAQS. If the EPA deems a plan insufficient, the EPA must establish a plan to meet the standards which the State must then carry out.

To address the impacts of air pollution generated in upwind States and then transmitted to downwind States, the CAA contains what is frequently termed the “good neighbor” provision. It requires that State plans contain adequate safeguards to ensure pollution generated in one state will not “significantly” contribute to the non-attainment of NAAQS in another state. Establishing rules to enforce this provision of the CAA has proven particularly difficult for the EPA.

The EPA enacted rules in 1998 to quantify the good neighbor obligations of 22 states resulting from publication of the 1997 NAAQS. The rule favored the use of the most cost-effective emissions controls. In a 2000 decision, the D.C. Circuit Court of Appeals found “no clear Congressional intent to preclude consideration of cost.” Essentially, the court held that the EPA could use cost considerations to lower an upwind State’s obligations under the good neighbor provision. What was not clarified in this decision was whether the EPA could use cost considerations to raise an upwind State’s obligations.

In 2005, the EPA promulgated the Clean Air Interstate Rule (“CAIR”), which built on the 1998 rules and expanded application to 28 States. CAIR went further than the previous rule in incorporating cost considerations to quantify a State’s requirements. As a result of how cost considerations were incorporated into the rule, it was possible that an upwind State would be required to reduce its emissions by more than its pro-rata share of downwind pollution.

In a 2008 decision, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held that “each state must eliminate its own significant contribution to downwind pollution . . . [EPA] may not require some states to exceed the mark.” The court remanded CAIR without vacatur, leaving CAIR in place “until it is replaced by a rule consistent with our opinion.”

To comply with the D.C. Circuit’s 2008 decision, the EPA promulgated the Transport Rule in 2010 – also known as the Cross-State Air Pollution Rule (CSAPR). Unlike with previous NAAQS, under CSAPR, the EPA did not provide information to the upwind states and then allow them to formulate a plan for achieving desired NAAQS levels. Instead, the EPA calculated what the required amounts would be and then told those upwind states what they needed to do to reach those levels. It is this rule that is currently under review by the Court.

CSAPR applies to three NAAQS for the 28 upwind states which the EPA has identified significantly contribute to NAAQS non-attainment by downwind states (the EPA defined “significant” for these purposes as at least 1% of the downwind States’ NAAQS). Under CSAPR, the EPA calculated how much pollution each upwind States’ power plants could eliminate if all controls available at or below a given cost per ton of pollution were applied. With this information, the EPA generated emission budgets for each State to determine what would be required to meet regional NAAQs targets. The EPA then converted those budgets to an allowance by emitter. At the same time, the EPA provided the 28 upwind States the opportunity to propose modifications to these allowances.

CSAPR is essentially a cap-and-trade based system which rewards efficiency. It allocates the cost of compliance on a regional basis to those upwind States with the least efficient emitters and away from those upwind States with the most efficient emitters.

In a 2012 decision, the D.C. Circuit vacated CSAPR in its entirety. The court said the EPA exceeded its authority in promulgating CSAPR in two ways: under the cost-efficiency approach, some upwind states may wind up needing to reduce emissions more than their contributions to downwind states NAAQS, and the EPA did not provide upwind States an opportunity to first draft their own plans to reduce their emissions to downwind States. Instead, the EPA both set NAAQS and required States to adopt the EPA’s plan concurrently.

At the same time, the D.C. Circuit elected not to vacate CAIR. The court indicated “the appropriate course is for the EPA to continue to administer CAIR pending its development of a valid replacement.”

The Court granted certiorari in June, 2013 on the EPA’s appeal of the D.C. Circuit’s decision on CSAPR. The Court indicated it will specifically address the following questions:

  • Did the D.C. Circuit have jurisdiction to hear the case?
  • Did the D.C. Circuit correctly interpret the statutory language in the Clean Air Act when it reviewed the EPA’s actions using a cost-efficiency approach?
  • Is an upwind State free from any obligations under CSAPR until the EPA has quantified that State’s contributions to downwind State’s air pollution?

Oral arguments were made December 10, 2013, with a decision expected by June 2014. Justice Alito recused himself from the matter. If the Court splits 4-4, the D.C. Circuit’s decision invalidating CSAPR will be upheld. The tone and type of questions the Justices proffered during oral arguments may indicate the chances for a reversal of the D.C. Circuit’s CSAPR invalidation are strong.

While Justice Scalia’s comments seem to imply he is unlikely to support a reversal and Chief Justice Roberts appears on the fence, Justices Breyer, Kagan, Bader Ginsburg and Sotomayor appear to favor reversal. Justice Thomas was typically silent. As is often the case, Justice Kennedy may be the tie-breaker. His comments seemed to imply he would support a reversal.

Those Justices who appeared to support a reversal did not seem to take issue with the cost-based approach, or the fact that CSAPR resulted in the EPA drafting a plan without first allowing States to draft their own plans. Those Justices indicated it was immaterial whether the EPA drafted the plan first and allowed the State to request a modification or vice-versa. Justice Scalia, on the other hand, focused his comments and questions on the literal statutory language “amounts which will contribute significantly to nonattainment” and whether a cost based, rather than a pro-rata approach, is compatible with this language.

If the Court rejects CSAPR, the EPA will have to completely rethink the approach to addressing downwind pollution. As Malcolm Stewart, Deputy Solicitor General for the U.S. Department of Justice argued on behalf of the EPA, utilizing a pro-rata approach (as suggested by the D.C. Circuit) may appear reasonable on the surface, but implementation, cost and equity factors are prohibitive.

Joe Kruger, the director for energy and environment at the Bipartisan Policy Center, a nonprofit organization specializing in energy and pollution issues, has said: “EPA’s efforts to reduce the cost of cutting pollution by using market trading keep running up against the limitations of the statute . . . without Congressional intervention, we will be left with more pollution near term as well as a higher cost of mitigation in the long run.”

42 U.S.C.A. §7409 (West)

42 U.S.C.A. §7410 (West)

Michigan v. E.P.A., 213 F.3d 663 (D.C.Cir. 2000)

North Carolina v. E.P.A., 531 F.3d 896 (D.C.Cir. 2008)

EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C.Cir. 2012)

American Lung Association v. EME Homer City Generation, L.P., 133 S.Ct. 2857 (2013)

E.P.A. v. EME Homer City Generation, L.P., 133 S.Ct. 2857 (2013)

E.P.A. v. EME Homer City Generation, L.P., Supreme Court cause 12-1182, Oral arguments

Wald, Matthew, New York Times, (accessed February 5, 2014)

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