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On September 20, 2024, the NAM filed an amicus brief urging the full D.C. Circuit to rehear this energy case that raises an issue of exceptional importance—whether a state’s energy policies can override federal energy decisions Congress assigned to the Federal Energy Regulatory Commission alone. Here, FERC approved a pipeline project carrying natural gas through New Jersey, New York, Delaware, Maryland and Pennsylvania. Following a challenge by environmental groups, the D.C. Circuit concluded that in approving the pipeline, FERC failed to adequately consider evidence suggesting a lack of market need for the pipeline’s additional capacity in New Jersey and New Jersey state laws mandating reductions in natural gas consumption.

We argue that the Natural Gas Act authorizes FERC to ensure that the public has access to an affordable and reliable energy supply. Full D.C. Circuit review is necessary to prevent states—which have their own natural gas reduction goals—from controlling federal energy policy, a matter of federal concern.

Unfortunately, on January 21, 2025, the D.C. Circuit denied the petition for rehearing or rehearing en banc.

In 2017, the MCLA sued the EPA to challenge the agency’s rule governing risk management plans for chemical facilities and oil refineries. The rule imposed costly and burdensome requirements on facilities that handle hazardous substances without improving worker or community safety. The court stayed the litigation after the EPA delayed enforcement of the rule and proposed a substantive replacement. The EPA then issued a final rule in 2019. The litigation remains stayed pending further orders from the court.

The NAM joined with partner organizations to bring a prophylactic challenge to a final rule regulating PIP (3:1)—a persistent, bio-accumulative chemical that is ubiquitous in manufacturing operations and supply chains—under the Toxic Substances Control Act. The rule called for the prohibition of PIP (3:1) on an aggressive timeline that would have severely impacted supply chains for a wide variety of electronics, from cell phones, to robotics used to manufacture semiconductors, to equipment used to move COVID-19 vaccines and keep them at the appropriate temperature. After the NAM coalition files it petition in the D.C. Circuit raising these compliance issues, the EPA agreed to seek additional public input on the rule for a period of 60 days, with a special focus on alternative exposure reduction measures for certain products. The agency also issued a issued a rare “No Action Assurance” to notify regulated industry that it would not enforce the rule for 180 days pending next steps in the rulemaking process to provide longer-term relief. The D.C. Circuit placed the case in abeyance pending the new rulemaking.

On November 19, 2024, the EPA issued a new final rule titled Decabromodiphenyl Ether and Phenol Isopropylated Phosphate (3:1); Revision to the Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under the Toxic Substances Control Act. On December 12, 2024, the D.C. Circuit granted the EPA's consent motion for voluntary dismissal of the case.

On June 11, 2024, the NAM filed a petition in the D.C. Circuit challenging EPA’s final rule setting individual standards for six per- and polyfluoroalkyl substances (PFOA, PFOS, PFHxS, HFPO-DA, PFNA and PFBS) in municipal water systems. PFAS are a diverse group of chemicals essential to modern life, including in the transformers used to power electric grids; in the semiconductors and solar components needed for clean energy transition; and in the aircraft, munitions, fire suppression systems and communication devices required for national security. EPA’s new rule sets a “Maximum Contaminant Level” for each of the six substances at or near zero—equivalent to a few drops in an Olympic swimming pool. The standards are so low that full compliance may never be achieved—meaning PFAS manufacturers and users will be unable to obtain discharge permits. And as municipalities face the high costs of coming into compliance (an estimated $3.8B annually), water systems, state attorneys general and other stakeholders have, and will continue to, bring litigation against manufacturers to defray those costs. Enterprising plaintiffs’ lawyers have also started using the infeasible standards to assert toxic tort and personal injury suits against manufacturers.

In our opening brief, filed on October 7, 2024, we explain that in plowing ahead with its unattainable rule, EPA violated the express requirements of the Safe Drinking Water Act and engaged in arbitrary and capricious decision making in violation of the Administrative Procedure Act. The rule’s many deficiencies include:

• A deeply flawed cost-benefit analysis that combines costs and benefits for multiple substances into a group determination, ignores substantial costs raised by commenters and improperly relies on “nonquantifiable benefits” where it lacked empirical data;

• A woefully incomplete feasibility analysis that fails to grapple with whether the technology and facilities necessary for compliance even exist;

• The novel and unlawful use of a “hazard index” (for PFHxS, HFPO-DA, PFNA, and PFBS), never before used in the SDWA’s 50-year history;

• Failure to consider reasonable alternatives or respond meaningfully to public comments that undercut its judgment; and

• Significant procedural deficiencies in regulating the hazard index substances like collapsing two distinct rulemaking steps into a single step and forgoing Science Advisory Board review along the way.

For these reasons, we asked the D.C. Circuit to vacate the rule.

On February 7, 2025, with the NAM and other petitioners' consent, the court entered an order to hold the case in abeyance for 60 days, giving the new EPA Administrator Lee Zeldin the opportunity to review the rule.

On March 6, 2024, the NAM joined a coalition of other major business trade associations to file suit in the D.C. Circuit to challenge the Environmental Protection Agency’s misguided final rule lowering the National Ambient Air Quality Standards for fine particulate matter (PM2.5) to 9 micrograms per cubic meter. The Clear Air Act requires manufacturers to obtain preconstruction permits for new and modified emissions sources obtainable only after showing that emissions from the proposed new source will not cause or contribute to a PM 2.5 NAAQS violation. The Clean Air Act also requires the EPA to review the NAAQS every five years to determine whether the PM2.5 standard should be retained or revised. In December 2020, following a complete review of the PM NAAQS, the EPA decided to retain the PM2.5 standard of 12 micrograms per cubic meter. But in June 2021, the agency announced it would reconsider that decision. The EPA ultimately issued the revised standard in an out-of-cycle reconsideration becoming the first administration to redo a promulgated NAAQS. The standard stands to impede economic development in much of the country due to many manufacturers’ inability to establish that a proposed new construction or modified emission source will not cause or contribute to a PM 2.5 NAAQS violation. The NAM therefore sued to protect manufacturers’ ability to obtain permits, expand facilities and pursue long-term investment plans, and defend our country’s competitive advantage.

On June 6, 2024, our coalition filed its opening brief arguing that the EPA lacks the authority under the Clean Air Act--the law that authorizes it to establish the NAAQS--to "reconsider" a decision made in 2020 to not lower the PM2.5 standard; that the agency failed to take into account the cost and feasibility of a tightened standard; and that it failed to give a "reasoned explanation for key aspects of its decision."

The NAM sued the EPA in 2015 to challenge the EPA’s declaration that 36 states’ state implementation plans (SIPs) under the Clean Air Act are invalid because they allow air emissions in excess of permit limits during startup, shutdown or equipment malfunctions. That flexibility is important to manufacturers that might temporarily exceed permit limits for reasons beyond their control. The litigation has been held in abeyance since April 2017 while the EPA considers whether to revise or rescind the rule.

On June 25, 2018, the NAM moved to intervene in a case involving permitting requirements for manufacturers under the Clean Air Act. Environmental groups sued to challenge a guidance document from the U.S. Environmental Protection Agency (EPA) that streamlines Clean Air Act permits under the New Source Review program for facilities that expand or modify their operations. If the plaintiffs' claims are successful, facility modifications could be significantly delayed and rendered more expensive. The NAM's motion asks the court to allow the NAM to become a co-defendant in the case with EPA to bring the voice of manufacturers in defense of the EPA's sensible policy.

On July 13, 2018, the court held the case in abeyance pending the completion of an EPA rulemaking to implement the terms of the guidance document. The litigation is expected to reactivate when the final rule issues.

The NAM sought review in the U.S. Court of Appeals for the D.C. Circuit of the Environmental Protection Agency’s (EPA) 2015 Clean Power Plan rule governing New Source Performance Standards (NSPS) for greenhouse gases from electric utilities. The rule is an attempt to address emissions from new, modified and reconstructed electric generating units. This case is important for manufacturers because EPA should not rely on policy preferences rather than the rule of law.

The NAM sued the EPA with a broad industry coalition to challenge the NSPS rule. We seek to invalidate the rule to pave the way for a sensible alternative. Our briefs argue that the rule is unlawful because EPA’s conclusions are arbitrary and capricious, not supported by substantial evidence, and fail to make the requisite endangerment findings. In 2017, the D.C. Circuit held the rule in abeyance while the current administration considers whether to revise or rescind the rule.

On 2/16/17, the NAM and other associations moved to intervene in a case brought by North Dakota challenging the EPA's latest action on its Clean Power Plan (CPP). The agency rejected a petition to reconsider the rule, and that decision is now being challenged in court. The case is likely to be affected by the court's soon-to-be-issued ruling in our main challenge to the CPP rule, since the procedural and substantive defects in the petition for reconsideration overlap significantly with the issues raised in the case already before the court. A motion to hold the case in abeyance pending EPA reconsideration was granted, and the case remains in abeyance.

In June, 2014, the Sierra Club challenged 9 EPA Clean Air Act rules in court, alleging that provisions in each rule are no longer valid as a result of a decision in April by the U.S. Court of Appeals for the D.C. Circuit. The provisions at issue allows companies an affirmative defense to civil penalties for exceeding emissions limits that are caused by malfunctions. A company must prove that the malfunction was sudden, infrequent, not reasonably preventable and not caused by poor maintenance or careless operation, and that it took steps to correct the malfunction and minimize resulting emissions.

In April, the court decided in Natural Resources Defense Council v. EPA to vacate portions of a Portland cement industry rule pertaining to the affirmative defense, finding that the EPA lacked the authority to create a defense applicable in federal court. This Sierra Club suit attempts to remove the defense from 9 other rules in which it arises, involving various industries and kinds of equipment. Challenges to regulations must be brought within 60 days of their promulgation unless the petition "is based solely on grounds arising after such sixtieth day . . . ." The suit claims that the NRDC case decision constitutes grounds arising after the rules were promulgated.

In July, the NAM and 13 other business associations filed a motion to intervene in the suit. Manufacturers will be negatively impacted if the suit is successful, since it could make them liable for permit violations arising from unavoidable equipment malfunctions. That liability can arise both from EPA citations and from citizen suits around the country.

The rules at issue govern chemical manufacturing, pulp and paper mills, steel pickling, marine tank vessel loading operations, industrial steam-generating units, nitric acid plants and others.

On July 25, the court ordered the case held in abeyance while the EPA decided on a pending administrative petition from the Sierra Club to revise the rules. The EPA granted the petition, and on December 17, 2014, the court held this case in abeyance until the EPA completes the rules revision process. As of July 30, 2019, the EPA has not yet completed its administrative process.

On November 12, 2024, the NAM filed an amicus brief urging the D.C. Circuit to vacate EPA’s final rule designating PFOA and PFAS as CERCLA hazardous substances (“Superfund”). This designation requires companies to immediately report the release of the substances that meet or exceed the “reportable quantity” to the EPA. The rule also grants EPA the authority to compel parties responsible for the presence of the substances on a site to clean up the substances. This can result in extensive costs and legal fees to attempt to allocate the costs for cleanup, as any party that is potentially liable can be held liable for the entire cleanup of the site—regardless of the reason for the presence of PFAS.

We argued that EPA ignored critical elements of the cost of the rule because it informed the public that it was not considering cost but then sprang a half-baked cost-benefit analysis on the public in the final rule.

On October 17, 2024, the NAM filed an amicus brief urging the D.C. Circuit to vacate EPA’s flawed rule for conducting risk evaluations of chemical substances under the Toxic Substances Control Act. The rule—which was challenged by a union and several industry groups—requires EPA to take a “whole chemical” approach to risk evaluation under which EPA makes a single risk determination for all conditions of use of a chemical. This approach potentially subjects all uses of a chemical to regulation, even if all but one of the chemical’s uses poses no risk. The rule also requires EPA to assume that workers do not use personal protective equipment when dealing with chemical substances in manufacturing.

We argue in our brief that EPA’s “whole chemical” approach is contrary to both the text of TSCA and the case-by-case approach to risk determinations endorsed by EPA for decades. The new rule will lead to complex risk revaluations that cannot be completed within statutory deadlines. We further argue that EPA’s PPE presumption is inconsistent with industry practice and ignores existing legal requirements.

On January 24, 2025, the NAM filed an amicus brief urging the D.C. Circuit to vacate EPA’s new SOCMI/HON rule, the New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins Industry. The rule will impact more than 200 chemical plants nationwide by requiring them to take actions to lower certain chemical emissions, including emissions of ethylene oxide (used to sterilize medical equipment). In this challenge led by the American Chemistry Council, ACC and its co-petitioners argue that EPA lacked authority to impose risk-based emission standards on categories of emissions sources. Adopting EPA’s view that it can conduct more than one risk review would lead to uncertainty that would undermine businesses’ long-term plans and deter investments.