2014 LEGAL AND REGULATORY DEVELOPMENTS

Key Legal and Regulatory Developments• Greenhouse Gas

– Cross State Air Pollution• E.M.E. Homer v. EPA

– GHG Regulations for Large Stationary Sources• URAG v. EPA

– Clean Power Initiative• Section 111(d) Rules

• Clean Water Act 402 and 404– Mingo Logan– NMA v. McCarthy

SAMS v. A & G Coal• Revised Selenium Criterion• Waters of the United States Proposed Rule

EME Homer City Generation LP v. EPA, 134 S.Ct. 1584 (2014)• Cross State Air Pollution Rule (“CASPR”) or

“Transport Rule”• CAA’s “good neighbor provision”– Upwind states must prevent sources within

their borders from emitting federally determined amounts of pollution that cross state lines that contribute significantly to downwind state’s nonattainment of NAAQS.

– Good neighbor provision requires SIPs to implement EPA required reductions.

Federalism

• “the federal principle or system of government” and defines “federal” as “having or relating to a system of government in which several states form a unity but remain independent in internal affairs.” Oxford English Dictionary

• See “A (Mostly) Civil War Over Clean Air Act SIPs,” Vol. 27 No. 1, NR & E (2012)

• Upheld EPA’s Methodology for determining state reduction of pollutants– Control analysis– Analyzes amount state could eliminate through

different cost thresholds

• Upheld EPA’s Imposition of a FIP.• Courts give deference to an agencies

reasonable interpretation of an ambiguous statement (Chevron Doctrine)

Utility Air Regulatory Group v. EPA134 S.Ct. 2427 (2014)

• Massachussetts v. EPA revisited• 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.

• EPA’s position was that once it imposed any new requirements for an air pollutant (CO2)it was compelled to apply it to all major sources (triggering)– Created a ridiculous result with the outrageous

number of major sources (PSD) of CO2. EPA then tailored the rule to only very large sources of CO2 emissions.

• Court held that the Act neither compelled nor permitted EPA’s interpretation that required it to obtain PSD or Title V-Not a command to regulate

• However, Justice Scalia said that major sources already regulated (anyway sources) under PSD and Title V could be required to comply with CO2 reductions as best available control technology (BACT).

• Challenges still in play at the District Court on remand.

President Obama’s Climate Action Plan• Looks for 17% reduction of GHG from 2005

base year by 2020.• Will impose new standards on utilities• Will emphasize renewables• Will look at adaptation models

Section 111(d) Rules-NSR for Existing Sources• First real attempt to require NSR and NSPS

for existing sources• Nationwide seeks 30% emission reductions

by 2030 (from 2005).• State Specific Emission Goals• Guidelines for development and

submission of SIPS• Does not prescribe how a state will

achieve the goals

Latest Approach-Rulemaking

• Sent to OMB in September 2013• “Connectivity of Streams and Wetlands to

Downstream Waters: A Review and Synthesis of the Scientific Evidence”– Being reviewed by the EPA Science Board– Links headwater streams to TNW– Will be Basis of Rule

• Will eliminate the Significant Nexus Test on a case by case basis by Declaring everything Significant.

• We define connectivity as the degree to which components of a system are joined, or connected, by various transport mechanisms.

• Applies to Ephemeral Streams• Could apply to isolated wetlands• Could bring all wetlands in flood plains and

riparian areas not currently regulated

• All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported.

• Streams are biologically connected to downstream waters by the dispersal and migration of aquatic and semiaquatic organisms, including fish, amphibians, plants, microorganisms, and invertebrates, that use both up- and downstream habitats during one or more stages of their life cycles, or provide food resources to downstream communities.

• Wetlands and open-waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers (e.g., wetlands and open-waters in riparian areas and floodplains) are physically, chemically, and biologically connected with rivers via the export of channel-forming sediment and woody debris, temporary storage of local groundwater that supports baseflow in rivers, and transport of stored organic matter.

• Wetlands in landscape settings that lack bidirectional hydrologic exchanges with downstream waters (e.g., many prairie potholes, vernal pools, and playa lakes) provide numerous functions that can benefit downstream water quality and integrity.

Selenium

• “External Peer Review Draft Aquatic Life Ambient Water Quality Criterion for Selenium--Freshwater 2014.”

• Scientific Comment Period Extended to July 28.

• 1. The concentration of selenium in the eggs or ovaries of fish does not exceed 15.2 mg/kg, dry weight;

• 2. The concentration of selenium (a) in whole-body of fish does not exceed 8.1 mg/kg dry weight, or (b) in muscle tissue of fish (skinless, boneless fillet) does not exceed 11.8 mg/kg dry weight;

• 3. The 30-day average concentration of selenium in water does not exceed 4.8 μg/L in lotic (flowing) waters and 1.3 μg/L in lentic (standing) waters more than once in three years on average;

• 4. The intermittent concentration of selenium in either a lentic or lotic water, as appropriate, does not exceed 30− – (1− ) over 𝑊𝑄𝐶 𝑑𝑎𝑦 𝐶𝑏𝑘𝑔𝑟𝑛𝑑 𝑓 𝑖𝑛𝑡 𝑓

more than once in three years on average.𝑖𝑛𝑡

Translations

• Tissue samples results trump the water column numbers and concentration values.

• No “acute” criterion. As a result the issue of selenate versus selenite is not relevant in setting the limits.

• The water column numeric value is averaged over a 30 day period– 1.3 µg/L for lentic and 4.8 µg/L for lotic.– Current laboratory standard methods typically

report less than 2 µg/L as non-detect, so this is a very very low number.

SAMS v. A & G