An earlier post on the US Supreme Court’s decision in Sackett v. EPA, wherein the Court said that parties facing administrative orders under the Clean Water Act had the right to an immediate judicial hearing if the parties were challenging the jurisdiction of EPA to issue the orders. Recently, on March 26, 2012 has come another blow to EPA jurisdiction from the federal 5th Circuit Court of Appeals.
In Luminant Generation Company, et al. v. US Environmental Protection Agency, the State of Texas had issued a permit covering a number of different emissions-producing entities on the basis that the entities all emitted the same type of pollutants and that these emissions, even when lumped together, did not exceed the National Ambient Air Quality Standards (the “Standards”) set by the federal Clean Air Act. None of the entities receiving the benefit of the permit were, on an individual basis, a “major” source of air pollution (“major” being defined as an entity emitting 100 tons or more or 250 tons or more of a regulated pollutant, depending on the source).
EPA refused to approve the State’s decision to issue the permit, contending that the Clean Air Act authorized EPA to require the State to measure pollutant emissions on the basis of narrowly-defined emission sources (e.g., a specific industry) rather than on the basis of emission types (e.g., different industries emitting the same type of pollutant). Along with Texas, some of the affected entities, including power companies and a mining company, filed suit, claiming that EPA had no authority under the Clean Air Act to limit the State’s decision as to how to issue permits so long as the permits were not issuing to any individual major source of pollution and so long as the effect was to keep overall emissions within the Standards.
The 5th Circuit agreed, stating that the Clean Air Act limits EPA’s review of State permits in minor-source cases, leaving the agency “with no discretion to do anything other than ensure that a state’s submission meets the [Act’s] requirements” [on limiting overall pollution] and, if it does, approve it….” The 5th Circuit also found that, while the Clean Air Act required EPA to approve or disapprove of Texas’regulatory scheme within 18 months after submission of the regulations to the agency, here EPA had issued its disapproval fully 2 years after that 18-month deadline had passed. The Court thus invalidated the EPA’s own invalidation of the Texas regulations and sent the matter back to the agency with the direction to reconsider the regulations in accordance with the Court’s opinion.
The Luminant and Sackett cases have been joined by yet a third opinion, Mingo Logan v. EPA, in which the federal Court of Appeals for the DC Circuit recently ruled that the agency had illicitly barred a coal company from using 2 streams as discharge sites. The Court found that the EPA’s action was inconsistent with a US Army Corps of Engineers action; the Corps of Engineers had years earlier given permission to the company to use the rivers for discharge.
This recent trio of decisions may mark a turning point in EPA jurisprudence. Traditionally, the agency has been given by the Courts broad, almost unquestioned discretion in decisions about how to pursue and regulate alleged polluters/alleged infringements on natural resources. Now the agency has faced real scrutiny as to how far its jurisdiction extends and even as to how decisions are made within
that jurisdiction.
Yet another test awaits the EPA in these regards. The DC Circuit has recently heard arguments challenging the agency’s implementation of rules regulating carbon-dioxide emissions (Coalition for Responsible Regulation v. EPA). The challenge comes from a wide variety of industries including coal, steel, cement, homebuilding and agricultural.
The challengers, among other things, dispute the agency’s authority to implement a so-called “tailoring rule”, requiring only the largest CO2 emitters (over 100,000 tons per year) to obtain permits. The argument here, somewhat like the argument in the Texas case above, is that the Clean Air Act nowhere contains a provision authorizing the EPA to regulate only such large sources of CO2 emissions to the exclusion of the other six-million or so smaller sources that emit the same pollutant. Were the challenge validated by the DC Circuit, EPA would be forced to regulate the emissions of such small emissions sources as churches and small businesses, probably making the regulations wildly unpopular and in need of further reform (which is what the industries want).
To the extent this line of decisions continues and thus constrains EPA, look for the individual States to step in using their own best judgment as to what environmental regulations to pass and implement.
From my column, "Legal News You Can Use", published inm the Valley News Group (San Fernando Valley California) newspapers.
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Posted by: PalmTee | September 27, 2012 at 08:16 PM
Yes, we could be losing our edge.China just psesad the U.S. to become the world's biggest emitter of carbon dioxide. Maybe we could take back first place if we ramp up those again. On the bright side, at least the U.S. is holding firm on its refusal to sign the Kyoto Protocol it's now the that hasn't done so (we're #1! we're #1!). Let's just hold our breaths and hope is elected president and still believes that abortion, environmentalism, AIDS, pornography, drug abuse, and homosexual activism have fragmented and polarized our communities. He can surely unite us and make the U.S. the planet's top threat.I guess crabs aren't the only thing we need to pull .
Posted by: Karthick | September 27, 2012 at 07:34 AM
Yes! I feel like a pawn in a corporate chess game. Hmmm we want hoialdy spending in the stores...we will lower gas prices. We want to punish CA for voting Democratic....let's take some refineries "off line" for "repairs." Hmmmm let's see we want to scare people about the war lets call it "Orange level." Watch the news and the gas prices and you can't help but wonder. Do they think we are all this stupid? I am filling up my car today, because as soon as the hoialdys are over and retailers have made their haul, I am sure there will be another gas crisis.When I watched "Sicko" it made me ashamed of the US and I wanted to move to France. I have friends who are applying to live in Canada. I never thought I would live to see the day when Americans would rather live abroad for a better quality of life. It's very sad.
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Posted by: cris_gabe143 | September 24, 2012 at 09:30 PM
Your right Old Henry. This is their way of getting rid of tghins they do not want to exist. In the future this is what we can look forward to regarding many tghins the “Greene’s” and others also do not like. Cows cause pollution, but we cannot ban cows so lets ban their feed. Coal also causes pollution so we ban its use. Although both of these restrictions harm a great many people and increase prices which also has an effect on our overall lifestyle, it is about control. They must control us to make the final big thrust toward (the promised) “fundamental change.” Just in case no one has been watching they are going to be using the same tactic to eliminate guns and whatever other parts of our lives they wish to control. Once guns are restricted or eliminated our constitution can be eliminated and our conversion to socialism or communism can be completed. Does anyone except me remember all those Obama supporters who cheered and applauded when Obama announced five more days and we will begin to fundamentally change the United States of America. I wonder how many would cheer today.
Posted by: Jazmin | August 23, 2012 at 12:57 PM
Waterman, what you described is eacltxy what two leading communists stated during the U.S. Presidential campaign as both Mrs. Hillary Rodham Clinton and Barack Hussein Obama II stated word for word . We're going to take things away from you on behalf of the common good. From each according to his ability, to each according to his need. As most Americans were chanting up and down during their pretty speeches; I bet most never realized what on earth they were talking about, and these are the same idiots that help tear this nation down by voting them into office.I would love to have the 15th Amendment to the U.S. Constitution amended' to read; The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude; [provided the citizens have a full knowledge of American history, the U.S. Constitution, and the Declaration of Independence."]At the voter registration office, they can be tested for the above knowledge, and if they pass the test, they will be issued a voter's ID card prior to voting from then on. This will also give them the incentive to investigate individuals running for public office as I have always done in the past.By the way; the above word for word regurgitated by both leading communists came from Karl Marx's speech in 1875.MSGT JOHN CORREAUSAF (RET)
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