Court Issues Nationwide Stay of EPA Water Rule

A divided panel of the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of a regulation issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers defining the scope of the “waters of the United States” subject to federal regulatory jurisdiction under the Clean Water Act (CWA). This rule — the so-called WOTUS rule — represents the EPA and Army Corps’ effort to clarify the scope of federal regulatory jurisdiction in light of Supreme Court decisions in 2001 and 2006 concluding that the agencies had adopted an unduly broad interpretation of the scope of their authority. Numerous challenges against the WOTUS rule are pending in courts around the country.

There is some question as to whether the court of appeals has jurisdiction to consider a challenge to the rule under the CWA. Specifically, there is a question whether, under the terms of the CWA, challenges to the rule are to be brought in district or circuit courts. Other courts considering WOTUS rule challenges have split on this question. Also interesting is that those parties seeking a stay — those opposing the rule — are also those who are arguing that the challenges should be heard in district courts, and that Sixth Circuit lacks jurisdiction to hear the initial challenge.

The majority concluded that the opponents of the WOTUS rule have shown a sufficient likelihood of prevailing in their challenge to justify the stay. Judge McKeague, joined by Judge Griffin, wrote for the court:

[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act,it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).

The majority also concluded that there were good reasons to maintain the status quo pending the resolution of challenges to the rule.

What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). In one sense, the clarification that the new Rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.

The court also noted that (as discussed here), the rule has already been stayed in 13 states. A nationwide stay serves the additional purpose of maintaining nationwide uniformity while the litigation proceeds.

Judge Keith dissented from the court’s opinion on the grounds that the court should not issue a stay against the rule until it determines that it has jurisdiction under the CWA to review the rule. In response, the majority argued that it has the discretionary power to issue a stay pending the resolution of the jurisdictional question, and that briefing on that matter is underway.  (Wash Post, 10/9/2015)

24 States Sue EPA Over President Obama's Coal Regulations

A coalition of 24 states and a coal mining company filed lawsuits Friday to challenge President Obama’s climate change rule for power plants. The climate rule, dubbed the Clean Power Plan, seeks a 32 percent cut in the power sector’s carbon emissions by 2030, compared with 2005 levels. Each state has been assigned a specific emissions goal based on its unique circumstances, with flexibility in how the goals are met.

The litigants accuse the Environmental Protection Agency (EPA) of going far beyond the authority Congress granted to it by ordering a significant transformation of states’ electricity generation, moving away from fossil fuels like coal and toward lower-carbon sources like wind and solar power.

The states joining West Virginia are Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, Arizona and North Carolina.

They are asking the Court of Appeals for the District of Columbia Circuit to overturn the rule. They also want the court to immediately stop its implementation while it works its way through the courts.

The EPA said its rule is legal and will pass all court challenges.

The attorneys general of 15 liberal states, along with the District of Columbia and New York City, are planning to intervene in the lawsuit to support the EPA.  Those state and city officials, led by New York State, said in August that they “fully anticipate defending the rules if they are challenged in court.”  (The Hill, 10/23/2015)

House Passes Bill To Lift Federal Prohibition on Crude Oil Exports

The House on Friday approved a bill, sponsored by Joe Barton (R-TX), to lift the federal prohibition on crude oil exports. Lawmakers voted 261-159 to end the 40-year-old crude oil export ban, arguing that the measure is necessary to help prop up the American oil industry by allowing its product to hit the world market.

The House’s Friday vote was the latest step in the lengthy congressional debate over lifting the export ban.  Industry (American Petroleum Institute, Independent Petroleum Association of America, National Association of Manufacturers) cheered the vote while environmentalists (League of Conservation Voters and others) think that pumping more oil out of the ground will be bad for the environment.

Suppoerts believe that lifting the ban on U.S. oil exports will offer our global allies and trading partners an alternative source of energy, shrink global dependence on oil sourced from hostile regimes, and put America on level fitting with all other producing nation. (The Hill, 10/9/2015)

West Coast Petroleum Markets Differ by Supply, Demand, and Distribution

Source: U.S. Energy Information Administration, PADD 5 Transportation Fuels Markets
Note: Gasoline supply includes ethanol.

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The U.S. Energy Information Administration released a PADD 5 Transportation Fuels Markets study on September 30 that examines supply, demand, and distribution of petroleum-based transportation fuels in Petroleum Administration for Defense District (PADD) 5, which encompasses California, Arizona, Nevada, Oregon, Washington, Alaska, and Hawaii.

PADD 5's large and diverse geography contains several regional markets, each with its own distinct supply and demand situation:

• Southern California and Southern Nevada
• Northern California and Northern Nevada
• Pacific Northwest, which includes Washington and Oregon
• Arizona
• Hawaii
• Alaska

The sub-PADD markets are relatively isolated from each other and have different characteristics. Examining the markets at this level allows for insights into the dynamics of each market and how it relates to the PADD as a whole. For instance, PADD 5 includes Hawaii and Alaska, which use a disproportionally higher amount of jet fuel than other markets.

For each regional market as well as PADD 5 as a whole, the study considers supply, demand, supply logistics, and infrastructure. Supply includes in-region refinery production, receipts of fuels produced in other U.S. areas and in other PADD 5 regional markets, and imports. Demand includes in-region consumption, transfers of fuels to other parts of the United States (other PADDs) and to other regional markets within PADD 5, and exports to the global market. Distribution infrastructure includes storage terminals, pipelines, rail facilities, marine loading and unloading facilities, and marine vessel availability.

This study is the first in a series that the U.S. Energy Information Administration plans to conduct to enhance public understanding of the important features of petroleum product markets and to inform EIA's own analyses of those markets. The information provided in this first study will be especially valuable during periods of petroleum supply disruption and market change.  (DOE-EIA)

Let’s Modernize Our Environmental Laws

Gregg Easterbrook makes some interesting observations in his New York Times Op Ed where he states:

"Our major environmental laws are a generation or more out of date — written for conditions of the past, not the present. The Clean Air Act, signed by President Richard M. Nixon in 1970, has not been amended since 1990, a quarter-century ago. The Clean Water Act, passed in 1972, has not been updated since 1987. The Endangered Species Act, passed in 1973, was last amended in 1982. The National Environmental Policy Act, the law that mandates environmental impact statements, was passed in 1970 and last amended in 1982."

"Protection of nature and of public health are data-driven sciences — yet environmental laws are grounded in obsolete information. Like generals fighting the last battle, regulators and their opponents keep rehashing disputes of the 1960s and 1970s, the period when the enabling statutes of environmental protection were being debated by Congress."

(Read More)

National Energy Action Month 2015

In celebration of National Energy Action Month, President Obama issued this Presidential Proclamation.  Visit the U.S. Department of Energy's website to learn more about National Energy Action Month. 

Presidential Proclamation

As Americans, we have a profound obligation to our children and our grandchildren -- to help them live better lives than we did, and to ensure the choices we make do not limit the range of their dreams.  The key to realizing a future in which our young people are not held back by choices of the past lies in the promise of a clean, sustainable America.  During National Energy Action Month, we rededicate ourselves to bolstering energy efficiency, investing in innovative clean power, and working together to preserve our planet for generations to come.

My Administration remains committed to securing a stable, energy-independent future for our Nation -- and while there is much work to be done, we have made significant advances in recent years.  The United States is now the world's top producer of oil and natural gas, and we have set strict fuel efficiency standards for cars and light trucks, which are helping to wean us off our decades-old addiction to foreign oil.  We are transitioning away from energy sources that contribute to climate change and threaten our health and safety -- instead moving toward clean energy sources and ambitiously investing in alternatives like wind and solar.  Taking our place as a major player in clean energy, we are harnessing over 3 times as much electricity from wind and 20 times as much from the sun as we did in 2008.  We also remain dedicated to ensuring the safe and secure use of nuclear power, which generates over 60 percent of our carbon-free electricity.  And we will continue working to improve our energy efficiency, double our energy productivity, and explore any and all ways of saving consumers money while reducing our total energy consumption.  These efforts are vital to preserving our way of life and will help protect our environment and boost our Nation's economy.

As the world's second-largest emitter, America must recognize the role we play in contributing to our planet's changing climate and do all we can to make our air cleaner and safer for our children to breathe.  Through our historic announcement with China last November, the United States agreed to double the pace at which we cut our emissions, while China committed for the first time to limiting theirs.  In addition, this past summer, as part of our Clean Power Plan, I announced the first set of nationwide standards aimed at reducing the carbon emitted from our country's existing power plants.  This plan will aid in our fight against climate change while strengthening our economy and helping fulfill our moral obligation to leave our kids and grandkids with a stable planet.   And we are leading by example in Washington:  I signed an Executive Order earlier this year that aims to cut the Federal Government's greenhouse gas emissions by 40 percent and increase its share of electricity consumption from renewable sources to 30 percent over the next 10 years.

Last year, the global economy grew while global emissions remained flat for the first time ever, and we have seen that our goals of addressing energy challenges and driving economic progress are mutually compatible.  In that spirit, I will keep fighting to build a more sustainable society for all people by investing in clean sources of energy -- including wind, which could provide as much as 35 percent of our electricity and supply renewable power in all 50 States by 2050 -- as well as solar, which has added jobs 10 times faster than any other sector of our economy.  Additionally, I recently committed to getting 20 percent of our country's energy from renewables -- beyond hydroelectric power -- by 2030.  My Administration will continue supporting technology, including new and advanced nuclear technology, that moves us closer to a brighter energy future, advances energy efficiency, and develops cleaner fuels.

Though we may never see the full realization of our ambition in our time, we can still have the satisfaction of knowing we did everything within our power to leave this world better than it was.  During National Energy Action Month, let us recommit to forging the future that is within our capacity to reach by supporting clean, renewable, and independent means of energy production and by taking control of our own energy consumption.  Everything we have is at stake -- and we must fight for it.

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 2015 as National Energy Action Month.  I call upon the citizens of the United States to recognize this month by working together to achieve greater energy security, a more robust economy, and a healthier environment for our children.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-ninth day of September, in the year of our Lord two thousand fifteen, and of the Independence of the United States of America the two hundred and fortieth.

BARACK OBAMA

Justice Department Fines BP $20.8 Billion For Gulf Oil Spill

The Justice Department has detailed a record-setting civil settlement with BP over the 2010 oil spill in the Gulf of Mexico that will cost the London-based oil company $20.8 billion.  The historic civil penalty sends a clear message of accountability for those who pollute the U.S. environment.

The highlights of the settlement include $8.1 billion in natural resource damages, including $1 billion BP agreed to pay earlier; $5.5 billion plus interest for Clean Water Act penalties; and $5.9 billion under a separate agreement to cover state and local government claims.

The settlement does not, however, include $4 billion that BP agreed to pay earlier to settle criminal charges or the billions more it has spent cleaning up the oil spill and settling separate civil claims with private individuals.  The Justice Department settlement includes $700 million to address natural resource problems that might come to light later. 

The settlement ends a chapter of the BP oil spill, which occurred April 20, 2010, when a blowout on the Deepwater Horizon oil rig killed 11 workers, set the rig on fire and triggered the spill. It took 87 days to stop the oil from surging into the waters of the Gulf of Mexico.

The government said that the oil slick at one point grew to the size of Virginia and fouled 1,300 miles of coastline.

The Clean Water Act fine was by far the largest in history, amounting to $1,725 a barrel. That fell well short of the maximum allowable fine, $4,300 a barrel in cases of gross negligence.

The settlement is not designed to discourage any valid economic activity, but the massive fines are designed to let other companies know they are going to be responsible for the harm that occurs should accidents like this happen in the future.  (Wash Post, 10/5/2015)

EPA Strengthens Ozone Standards

The U.S. Environmental Protection Agency (EPA) has strengthened the National Ambient Air Quality Standards (NAAQS) for ground-level ozone to 70 parts per billion (ppb) from 75 ppb to protect public health. The updated standards will reduce Americans’ exposure to ozone, improving public health protection, particularly for at risk groups including children, older adults, and people of all ages who have lung diseases such as asthma. Ground-level ozone forms when nitrogen oxides (NOx) and volatile organic compounds (VOCs) react in the air.

EPA examined nearly 2,300 studies in this review of the ozone standards including more than 1,000 new studies published since the last review of the standards in 2008. Scientific evidence shows that ozone can cause a number of harmful effects on the respiratory system, including difficulty breathing and inflammation of the airways.

The revised standards could significantly improve public health protection, resulting in fewer premature deaths, and thousands fewer missed school and work days and asthma attacks. For people with lung diseases like COPD (chronic obstructive pulmonary disease) or the 23 million Americans and 6 million children living with asthma, these effects can aggravate their diseases, leading to increased medication use, emergency room visits and hospital admissions. Evidence also indicates that long-term exposure to ozone is likely to be one of many causes of asthma development. And studies show that ozone exposure is likely to cause premature death.  The public health benefits of the updated standards, estimated at $2.9 to 5.9 billion annually in 2025, outweigh the estimated annual costs of $1.4 billion. 

Local communities, states, and the federal government have made substantial progress in reducing ground-level ozone. Nationally, from 1980 to 2014, average ozone levels have fallen 33 percent, while the economy has continued to grow. 

To ensure that people are alerted when ozone reaches unhealthy levels, EPA is extending the ozone monitoring season for 32 states and the District of Columbia. This is particularly important for at-risk groups, including children and people with asthma because it will provide information so families can take steps to protect their health on smoggy days. 

EPA also is strengthening the “secondary ozone standard” to 70 ppb, which will improve protection for trees, plants and ecosystems. New studies since the last review of the standards add to evidence showing that repeated exposure to ozone reduces growth and has other harmful effects on plants and trees. These types of effects have the potential to harm ecosystems and the benefits they provide. 

The Clean Air Act provides states with time to meet the standards. Depending on the severity of their ozone problem, areas would have until between 2020 and 2037 to meet the standards.

The Clean Air Act requires EPA to review the ozone standards every five years to determine whether they should be revised in light of the latest science. Today’s action comes after a thorough review and public comment process.  The agency received more than 430,000 written comments on the proposed standards and held three public hearings. 

More information: http://www3.epa.gov/ozonepollution/

To view the video: https://m.youtube.com/watch?v=Y6chlLb59zA