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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.

A group of individual plaintiffs brought a class action lawsuit against defendant Saint-Gobain Performance Plastics Corp., alleging that Saint-Gobain released perfluorooctanoic acid (PFOA) into groundwater that seeped into the plaintiffs' nearby land. The plaintiffs argued that they are entitled to financial damages to pay for ongoing medical health monitoring because of their alleged exposure to PFOA, and to compensate them for lower property values allegedly caused by the contamination. Saint-Gobain moved to dismiss the complaint because New York law does not recognize claims for medical monitoring absent any evidence of physical harm and does not recognize diminution of property value due to alleged groundwater contamination. The district court denied the motion to dismiss but certified immediate appellate review by the United States Court of Appeals for the Second Circuit. The NAM filed an amicus brief on behalf of Saint-Gobain to ensure that the law limiting medical monitoring and diminution-of-value claims remains appropriately balanced and favorable to manufacturers. Without appropriate limitations on these types of claims, manufacturers would be subject to massive and unwarranted increases in liability exposure.

The NAM filed an amicus brief in support of rehearing en banc by the 9th Circuit in one of over two dozen public nuisance cases seeking to drive national energy policy on climate change. This case is part of a coordinated, national litigation campaign filed in carefully chosen states and federal circuits by agenda-driven lawyers and activists. The issue presented is whether putative state-law tort claims alleging harm from global climate change are removable because they arise under federal law. In April 2022, the 9th Circuit rejected federal-question jurisdiction and all other bases for subject matter jurisdiction and remand the case to state court. In support of rehearing, the NAM filed an amicus brief arguing that the subject matter and remedies sought through this litigation are inherently national, as well as legislative and regulatory in nature, and that such complex policy matters should not be driven by individual state judges in individual state courtrooms applying (or misapplying) various state liability laws.

Unfortunately, on June 27, 2022, the 9th Circuit denied the petition for rehearing.

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 filed an amicus brief in a case involving the state of Washington’s authority to prohibit certain exports from Washington’s coastal ports. Washington state denied several environmental permits necessary to construct a new coal export terminal near Longview, Washington. The denials were improperly based on concerns about the use of coal for electricity generation in foreign countries. The state’s actions have dangerous implications for the power of individual states to interfere with interstate and international trade. A federal district court rejected the plaintiffs’ claims. On appeal to the 9th Circuit, the NAM’s amicus brief explained how state and local interference with foreign trade undermines a uniform foreign policy and is harmful to the national economy. Moreover, we argued that Washington’s actions violate the foreign commerce clause and that allowing the state’s actions to stand would give a green light to state and local interference with foreign trade policy.

On February 6, 2018, the EPA issued a final rule that adds an applicability date of February 6, 2020, to the EPA’s 2015 rule governing jurisdictional “Waters of the United States” under the Clean Water Act (2015 WOTUS rule). A coalition of environmental groups sued EPA to challenge the rule, arguing that EPA lacks the statutory authority to impose an applicability date. The applicability date rule is important to manufacturers because it precludes application of the 2015 WOTUS rule while EPA develops and issues a sensible replacement WOTUS rule. The 2015 WOTUS rule asserts federal jurisdiction over millions of acres of landscape features throughout the United States, triggering permitting requirements that will slow development and increase permitting costs on manufacturers. The rule’s vague and ambiguous terms also create confusion and increase the risk of inadvertent violations. The NAM intervened in the litigation to help EPA defend the applicability date rule to allow EPA the necessary time to develop and issue a new WOTUS rule.

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.

Upon promulgation of the EPA's 2015 rule defining jurisdictional "Waters of the United States" (WOTUS) under the Clean Water Act, a coalition of states led by North Dakota sued the EPA in federal district court in North Dakota to challenge the rule. The states then moved for preliminary injunction against the rule, which the court granted within the territorial boundaries of the plaintiff states (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming). Soon thereafter, however, the U.S. Court of Appeals for the Sixth Circuit claimed authority to consider all challenges to the WOTUS rule—to the exclusion of the North Dakota district court and several other district courts in which lawsuits had been filed, including an NAM coalition lawsuit in the U.S. District Court for the Southern District of Texas. In January 2018, however, the U.S. Supreme Court ruled that the Sixth Circuit lacked jurisdiction to consider the various WOTUS challenges. This reactivated the North Dakota case, allowing the court to proceed to the states’ merits challenges to the 2015 rule. On June 8, 2018, the NAM filed an amicus brief on behalf of the states that explains how the rule was promulgated without required procedure and how the rule violates the Clean Water Act and the U.S. Constitution.

Oklahoma and a coalition of business groups sued to challenge the EPA's 2015 rule governing jurisdictional "Waters of the United States" under the Clean Water Act. The rule adversely impacts manufacturers by asserting federal jurisdiction and permitting requirements over millions of acres of dry land throughout the country and by imposing unclear rules on land development. Oklahoma sought a preliminary injunction to stop the rule. A district court denied that injunction, and Oklahoma appealed. In support of their appeal, the NAM filed a coalition amicus brief that explains the impact of the rule on manufacturers and other sectors of the economy and supports an injunction in Oklahoma.

The NAM filed an amicus brief in the U.S. Court of Appeals for the First Circuit to overturn the city of South Portland, Maine’s ban on crude oil exports from the city’s harbor. The city council claimed it enacted the ban for health and safety reasons, but various public statements revealed a political opposition to the planned transportation of Canadian crude oil by pipeline to the harbor for export. The pipeline owner sued the city, arguing the ban violates the U.S. constitution’s commerce clause. A federal district court sided with the city. If such local energy export bans are allowed to stand, energy production and transportation would be restricted, shutting some products out of some markets, and increasing energy prices for many manufacturers. On appeal to the First Circuit, the NAM’s amicus brief explains the importance of the free trade of energy for manufacturers and argues that the city’s interference with free trade violates the U.S. constitution. On January 10, 2020, the court "sidestepped" the federal constitutional questions and certified three questions to Maine’s high court concerning potential preemption of the ordinance by state law.

The MCLA intervened in an environmental group’s legal challenge to the EPA’s rescission of the prior administration’s 2015 “Waters of the United States” rule. The EPA rescinded the 2015 rule because the rule’s lack of clarity resulted in regulatory uncertainty and confusion. Additionally, because some federal courts invalidated the 2015 rule in some parts of the country and not others, manufacturers faced a regulatory patchwork that made compliance across different states very difficult. The EPA’s rescission of the 2015 rule restored regulatory consistency and clarity. A coalition of environmental groups sued to challenge the rescission, arguing that the EPA exceeded its authority in doing so. The NAM and other leading industry trade associations intervened in the case to help defend the rule and to represent the interests of our members in the litigation.

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 February 6, 2018, the EPA issued a final rule that adds an applicability date of February 6, 2020, to the EPA’s 2015 rule governing jurisdictional “Waters of the United States” under the Clean Water Act (2015 WOTUS rule). A group of states led by New York sued EPA to challenge the rule, arguing that EPA lacks the statutory authority to impose an applicability date. The applicability date rule is important to manufacturers because it precludes application of the 2015 WOTUS rule while EPA develops and issues a sensible replacement WOTUS rule. The 2015 WOTUS rule asserts federal jurisdiction over millions of acres of landscape features throughout the United States, triggering permitting requirements that will slow development and increase permitting costs on manufacturers. The rule’s vague and ambiguous terms also create confusion and increase the risk of inadvertent violations. The NAM intervened in the litigation to help EPA defend the applicability date rule to allow EPA the necessary time to develop and issue a new WOTUS rule.

In 2015, the NAM filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit supporting a federal judge’s decision not to impose excessive penalties on ExxonMobil for various permit violations. On remand to the district court, the groups reduced their requested penalties from $642 million to about $40 million, and the district judge awarded them about $20 million, prompting Exxon’s appeal back to the Fifth Circuit. In 2018 and 2021, the NAM filed additional amicus briefs arguing that the Constitution and Clean Air Act limit citizen suits under the Clean Air Act and asking the Fifth Circuit to enforce the constitutional line that limits federal courts to deciding discrete cases and controversies and prevents them from acting as regulators or policymakers.

Unfortunately, on August 30, 2022, the Fifth Circuit affirmed the district court's latest decision imposing a $14.25M penalty on defendant-appellants (for 3,651 purported violations). On, October 20, 2022, the NAM filed an amicus brief in support of Exxon’s petition for the 5th Circuit to rehear en banc its appeal challenging the district court’s penalty award.

Happily, on February 17, 2023, the 5th Circuit granted the petition for rehearing en banc and vacated the panel decision. On March 27, 2023, the NAM filed an amicus brief asking the full 5th Circuit to reverse the panel’s decision to enforce the limits of federal courts’ jurisdiction. This case is important to manufacturers because courts should exercise discretion in determining civil penalties to prevent creating perverse incentives for plaintiffs.

Unfortunately, on December 11, 2024, a splitered 5th Circuit affirmed the district court's 2021 decision.

The NAM filed an amicus brief urging a New Mexico trial court to exercise its discretion, under the doctrine of primary jurisdiction, to dismiss a public nuisance lawsuit brought under the name of the state’s Attorney General that would create a parallel and deeply problematic regulatory regime for medical product sterilization facilities that use ethylene oxide. The facility at issue is already subject to comprehensive regulations and permit conditions developed by the U.S. EPA and the New Mexico Environment Department, but the AG’s suit, led by a prominent national plaintiffs’ law firm, would seek to rewrite those rules to essentially shut down the facility unless it pays up to satisfy the state and its outside law firm. The NAM’s brief argues that allowing ethylene oxide use, management, and emission standards to be fashioned and hammered out in a tort case by a local jury applying malleable public nuisance standards is not in the best interests of health care, sound science, or sensible regulation. Unfortunately, on June 29, 2021, the court allowed the case to proceed.

The NAM filed an amicus brief to support EPA’s defense of a trading program for ozone NAAQS pollutants. The Clean Air Act (CAA) requires EPA to establish national ambient air quality standards for six pollutants, including ozone. A 2018 EPA rule allowed companies to trade ozone pollutants with other emitters to meet federal emissions requirements. An environmental group sued to challenge the rule, arguing that the trading program is not allowed by the CAA. NAM members that seek to expand or build a new facility in many areas of the country can benefit greatly from this trading program. Pollutant trading programs like this provide a market-based solution that companies can use to grow their operations while reducing harmful air emissions in the aggregate. The NAM’s amicus brief explains the important and effective role of emissions trading and why such a program complies with the CAA. Unfortunately, on January 29, 2021, the court held that as a matter of statutory construction, the CAA prohibits the program.

The NAM filed an amicus brief to seek to overturn a district court ruling that erroneously penalized an electric generating facility under the Clean Air Act and improperly imposed additional penalties on a separate and unrelated generation facility. Electric utility company Ameren undertook needed repairs to a coal-fired electric generation unit. The EPA then sued Ameren, claiming that the repairs failed to comply with the Act’s New Source Review provisions, which require permits for “major modifications” to generating units. A federal district court judge agreed with the EPA. For a remedy, the judge ordered Ameren to obtain the permit and ordered a decrease in emissions at a separate Ameren electric generating unit. On appeal to the 8th Circuit, the NAM filed an amicus brief that highlights the problematic consequences of this decision on generators and other facilities that require Clean Air Act permits. Unfortunately, on August 20, 2021, the court affirmed the lower court's liability determination as to one facility and reversed as to the unrelated facility.

The NAM filed an amicus brief in support of a petition for certiorari seeking U.S. Supreme Court review and reversal of a 4th Circuit holding that invalidated a federal permit for a major natural gas transmission pipeline that crosses U.S. Forest Service lands. An environmental group sued the U.S. Forest Service to invalidate its permit allowing the Atlantic Coast Pipeline to cross beneath the Appalachian Trail hiking route. A panel of the Fourth Circuit held that the Mineral Leasing Act does not allow agencies to grant rights-of-way for pipelines to cross any stretch of the Appalachian Trail; rather, such approvals must come from a majority vote of the U.S. congress. This holding effectively converts the Appalachian Trail into a 2,200-mile barrier to pipeline construction from Maine to Georgia. The court’s reasoning could also be applied to any one of the dozens of pipelines that currently cross beneath the trail because such pipelines require periodic permit renewals. In support of the pipeline’s petition for Supreme Court review, the NAM filed an amicus brief that explained the legal flaws in the panel’s reasoning and highlighted the important benefits that pipelines provide for manufacturers and the national economy. On October 4, 2019, the court granted review for the 2019-2020 term, and on December 9, 2019, the NAM filed a coalition amicus brief on the merits in support of the pipeline. On June 15, 2020, the Court agreed, reversing the Fourth Circuit and upholding the longstanding precedent allowing infrastructure crossings of the Appalachian Trail.

In May of 2018, the NAM filed an amicus brief to urge the U.S. Supreme Court to review and reverse a Montana Supreme Court decision that undermines the predictability of EPA’s environmental remediation orders. The case arises under the federal Comprehensive Environmental Response, Compensation, and Liability Act (known as “CERCLA” or “Superfund”). Under CERCLA, EPA has the authority to order comprehensive clean up orders for sites containing hazardous wastes. Those orders preempt state and individual efforts to impose remediation requirements. The Montana Supreme Court nonetheless allowed nearby landowners to seek compensation for a remediation plan that conflicts with the EPA’s cleanup order. If not overturned, that decision will undermine the certainty and predictability for manufacturers that own Superfund sites. In support of a petition for review by the U.S. Supreme Court, the NAM filed an amicus brief that explains how the Montana Supreme Court’s decision frustrates environmental remediation. On June 10, 2019, the Court granted review of the case for the Court’s 2019-2020 term. On August 28, 2019, the NAM filed an amicus brief on the merits that supports Atlantic Richfield's arguments on the merits. And on April 20, 2020, the Court held that the landowners needed EPA approval to take remedial action to ensure “a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.” Although the opinion leaves open future state lawsuits related to Superfund sites, the need to obtain prior EPA approval presents a significant obstacle to such challenges—and provides meaningful certainty for manufacturers.

The U.S. Supreme Court should rule that the federal Clean Water Act does not regulate groundwater because the Act by its terms applies only to surface waters and would conflict with other environmental laws specifically tailored to protect groundwater. The U.S. Court of Appeals for the Ninth Circuit held in 2018 that groundwater is jurisdictional under the Clean Water Act, reasoning that groundwater can serve as a conduit to jurisdictional surface waters. Under this "conduit theory" of jurisdiction, certain industrial activities on dry land could give rise to lawsuits alleging such activities polluted nearby surface waters through groundwater connections. On appeal to the U.S. Supreme Court, the NAM’s amicus brief argued that this broad interpretation goes far beyond the scope and intent of the Clean Water Act, interferes with other environmental statutes focused on groundwater protection, would be impossible to implement, and would impose incalculable liability risk on manufacturers and other regulated industries. Unfortunately, in a 6-3 decision, the Court held on April 23, 2020 that the CWA does regulate groundwater "if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters."

The NAM filed an amicus brief in the U.S. Court of Appeals for the DC Circuit challenging the Environmental Protection Agency’s (EPA) decision to place an industrial site on the National Priorities List (NPL) under the Superfund program. The NPL is a list of contaminated sites that EPA has determined have the highest priority for investigation and possible cleanup. The site at issue in this case was placed on the list based solely on subsurface intrusion, also known as “vapor intrusion,” without considering the site’s sub-slab depressurization system used to mitigate vapor intrusion. If upheld, the EPA’s decision to exclude the mitigation system would undermine the efforts of manufacturers who have proactively installed and operated these systems. The NAM’s brief argued that the EPA arbitrarily and unlawfully failed to take into account the active mitigation system and used a residential rather than industrial exposure benchmark. Unfortunately, on July 28, 2020, the court declined to review EPA's decision.

The NAM intervened on behalf of the EPA to defend the EPA’s decision not to impose new Clean Air Act emissions limitations on hundreds of manufacturing facilities throughout the Midwest. In 2018, New York petitioned the EPA to force nine nearby states to impose stringent new air emissions restrictions on manufacturers and other facilities within their borders. The NAM filed coalition comments with the EPA that explained why the EPA should reject the petition, which it did in October of 2019. New York then sued the EPA to overturn the rejection. The NAM -- together with other impacted trade associations and individual companies -- intervened in the case to defend the EPA’s decision and to represent the interests of manufacturers in the litigation, filing an initial proof brief in the D.C. Circuit Court of Appeals on March 5, 2020. Unfortunately, on July 14, 2020, the court vacated EPA's decision and remanded the petition back to EPA for further proceedings.

The NAM filed an amicus brief to defend energy producers against efforts by municipalities to ban energy exports from costal ports. In 2016, the city of Oakland, California, passed an ordinance that restricted the construction of a proposed new coal export terminal along the San Francisco Bay. The public explanation for the ordinance was the protection of local health and safety, but the actual rationale for the ban is the city’s ideological objection to the exportation of American coal to global markets. If allowed to stand, this action has dangerous implications for the power of individual cities to interfere with interstate and international trade. The NAM's amicus brief highlights how such restrictions can harm manufacturers and argues that this interference violates the U.S. Constitution. On May 26, 2020, the court held that city's ordinance was invalid, but declined to reach the constitutional arguments.

On 12/14/17, the NAM and American Chemistry Council, along with local Texas groups, filed a challenge in the Fifth Circuit Court of Appeals to the Consumer Product Safety Commission’s (CPSC) final rule on phthalates, which restricts the phthalate DINP. The CPSC’s decision to restrict DINP was misguided, scientifically inaccurate and the result of a deeply flawed process that fabricated rationales for a predetermined outcome. The Commission should have relied on scientifically reasonable statistics when assessing the exposure data, which demonstrate the cumulative risk of exposure to these phthalates is actually well below any level of concern – even for sensitive populations. DINP, as currently used in commercial and consumer products, does not pose a risk to human health at typical exposure levels. The CPSC’s unfounded decision here could be a slippery slope to restrict other chemicals that special interests find objectionable.

On 2/5/18, the NAM filed a response to the CPSC's motion to dismiss. The NAM's filed its opening brief on 8/20/18 and its reply brief on 12/3/18. On March 1, 2021, a unanimous three-judge panel held that CPSC violated the Administrative Procedure Act by (1) not allowing sufficient opportunity for notice and comment when it shifted its justification for the rule from relying upon an HI=1 at the 95th percentile to relying on spot samples of actual women; and (2) CPSC failed to adequately consider costs and benefits when it continued the interim prohibition on DINP. The Court remanded the rule without vacatur to CPSC to address these shortcomings.

The NAM filed an amicus brief on behalf of Troy Corporation to argue that the EPA’s listing of sites under the Comprehensive Environmental Response, Compensation, and Liability Act should accurately reflect the site’s potential environmental risks and not rely on artificial and inaccurate rules of thumb. The EPA added a creek that runs through and adjacent to Troy Corporation’s manufacturing facility in Newark, NJ to CERCLA’s National Priority List. The listing was based in significant part on the EPA’s assessment that the creek had the potential to contaminate a fishing pier located 13 miles away. That assessment was based solely on regulatory assumptions that Troy rebutted in regulatory comments. In response to those comments, EPA responded that it is entitled to rely on the bright line presumptions in the regulation and need not demonstrate any actual risk of contamination. If such a position is upheld, many manufacturing sites could be listed as “priority” CERCLA sites when they have no actual potential to cause such environmental harm. The NAM’s amicus brief argues that this approach to listing sites violates CERCLA and could adversely impact many manufacturers. Unfortunately, on November 13, 2020, the court denied Troy's petition for review.

The NAM and 13 other organizations sued the EPA and the U.S. Army Corps of Engineers in 2016 to challenge the agencies’ 2015 rule defining the scope of jurisdictional “Waters of the United States” under the Clean Water Act (2015 WOTUS rule). The 2015 WOTUS rule exerts jurisdiction over a staggering range of waters and dry landscape features -- large and small; permanent, intermittent, or ephemeral; flowing or stagnant; natural or manmade; and interstate or intrastate. The NAM’s complaint argues that the rule exceeds the Clean Water Act and the United States Constitution.

The 2015 WOTUS rule defines which waters and land areas require a permit under the Clean Water Act for discharges of pollutants to those areas. The rule’s definitions and prohibitions are complex and vague, and often require case-by-case determinations by the agencies. Manufacturers will be required to undertake expensive and laborious efforts to determine whether landscape features on their property are jurisdictional. Penalties for unpermitted discharges (which can include simply moving dirt or mud without a permit) are tens of thousands of dollars per day, per violation.

The U.S. Court of Appeals for the Sixth Circuit initially asserted jurisdiction to hear the various legal challenges to the 2015 WOTUS rule. Due to questions about that Court’s authority to decide these cases, however, the NAM asked the United States Supreme Court to rule that federal district courts in fact are the proper venue for challenges to the 2015 WOTUS rule. In a unanimous decision issued on January 22, 2018, the Supreme Court ruled in the NAM’s favor, declaring that challenges to jurisdictional rules under the Clean Water Act must proceed in the federal district courts. That decision gave manufacturers and other regulated industries long-needed clarity on judicial resolution of rulemakings under the Clean Water Act. That clarity will expedite future litigation under the Clean Water Act.

While that procedural wrangling unfolded, the agencies began the regulatory process of rescinding the 2015 WOTUS rule and replacing it with a new jurisdictional rule. To ensure that the 2015 WOTUS rule does not come back into effect while the agencies complete their rule replacement process, the agencies issued a rule on February 6, 2018, that delays the effectiveness of the 2015 WOTUS rule until February 2020. In August 2018, a federal court enjoined that rule, which bring the 2015 WOTUS rule back into effect in the 26 states not already subject to a stay of the rule.

On October 18, 2018, the NAM filed our motion for summary judgment, which seeks to invalidate the 2015 WOTUS rule in its entirety. Our brief argues that the rule violates federal law and the U.S. Constitution, and should be invalidated in its entirety.

In a major win for manufacturers, on May 28, 2019, the court ruled that the EPA violated the law by issuing the rule without adequate notice and opportunity to comment on the proposed rule. The court remanded the rule to the agency to re-propose the rule and provide adequate opportunity to comment.

The NAM filed an amicus brief in support of the Mountain Valley Pipeline, a major new natural gas transmission pipeline to bring natural gas from the Marcellus shale region to manufacturers, electricity generators, and other consumers in the eastern United States. The U.S. Federal Energy Regulatory Commission (FERC) approved the pipeline under Section 7 of the Natural Gas Act. Environmental groups sued to challenge that authorization, arguing that FERC's environmental review under the National Environmental Policy Act (NEPA) should have quantified the greenhouse gas emissions impacts of all possible downstream uses of the natural gas. If courts interpret NEPA as imposing that requirement, the approval process for major energy infrastructure projects will only become more complex, delayed, and uncertain as FERC undertakes a speculative GHG analysis that environmental groups would inevitably challenge in court to delay project commencement. The NAM's amicus brief argued that NEPA does not compel a GHG analysis for every new energy infrastructure project, and that FERC properly exercised its discretion in determining that GHG emissions are not indirect effects of its approval of the Mountain Valley Pipeline. On February 19, 2019, the U.S. Court of Appeals for the D.C. Circuit upheld FERC's approval, concluding that FERC's consideration of the potential emissions impacts was reasonable under NEPA.

The NAM filed an amicus brief to defend the EPA’s withdrawal of a prior EPA policy known as "once in, always in" that imposed unreasonable and unlawful regulatory burdens on manufacturers under the Clean Air Act. In January of 2018, the EPA issued a guidance memorandum withdrawing the prior policy for the classification of major sources of hazardous air pollutants under section 112 of the Clean Air Act. With the new guidance, sources of hazardous air pollutants previously classified as “major sources” may be reclassified as “area” sources when the facility limits its potential to emit below major source thresholds. The new policy promotes regulatory clarity and reduces burdens for manufacturers while continuing to ensure stringent and effective controls on hazardous air pollutants. Environmental groups sued to challenge the policy change. The NAM filed an amicus brief in support of the EPA. Our brief explains how the policy change will continue to preserve air quality while removing unlawful and excessive regulatory burdens on manufacturers. In a win for manufacturers, on August 20, 2019, the court dismissed the challenge, finding the guidance was not final agency action subject to judicial review.

The NAM intervened in a lawsuit by environmental groups that seeks to constrain manufacturers' ability to recycle hazardous waste. The plaintiffs challenged a 2018 rule by the U.S. Environmental Protection Agency (EPA) that removed significant burdens on manufacturers to recycle hazardous waste under the federal Resource Conservation and Recovery Act (RCRA). Those burdens had been removed in the 2018 rule as a result of successful NAM litigation in 2017 that challenged an earlier EPA regulation that unreasonably burdened manufacturers. Hazardous waste recycling is important to many segments of the manufacturing industry because it allows companies to reuse or repurpose chemicals, minerals, or other products that otherwise would require disposal (typically at significant expense). By intervening on behalf of EPA, the NAM sought to preserve the 2018 rule and to bring the voice of manufacturers to the litigation. On July 2, 2019, the D.C. Circuit, in a unanimous ruling, rejected the plaintiffs’ challenge. This ruling preserves a safe and cost-effective means for companies to recycle hazardous waste.

The NAM filed an amicus brief in support of en banc review by the U.S. Court of Appeals for the Fourth Circuit to reverse a panel holding that invalidated a federal permit for a major natural gas transmission pipeline that crosses U.S. Forest Service lands. An environmental group sued the U.S. Forest Service to invalidate its permit allowing the Atlantic Coast Pipeline to cross beneath the Appalachian Trail hiking route. A panel of the Fourth Circuit held that the Mineral Leasing Act does not allow agencies to grant rights-of-way for pipelines to cross any stretch of the Appalachian Trail; rather, such approvals must come from a majority vote of the U.S. congress. This holding effectively converts the Appalachian Trail into a 2,200-mile barrier to pipeline construction from Maine to Georgia. The court’s reasoning could also be applied to any one of the dozens of pipelines that currently cross beneath the trail because such pipelines require periodic permit renewals. In support of the intervenor Atlantic Coast Pipeline’s petition for en banc review by the Fourth Circuit, the NAM filed an amicus brief that explained the legal flaws in the panel’s reasoning and highlighted the important benefits that pipelines provide for manufacturers and the national economy. On February 25, 2019, the Fourth Circuit denied en banc review.

The NAM filed an amicus brief opposing environmental groups' efforts to invalidate a critical Clean Water Act permit for offshore oil and natural gas development. The case involves EPA's reissuance of a regional general permit under the Clean Water Act that authorizes certain pollutant discharges from offshore oil and natural gas platforms in the Gulf of Mexico. EPA's environmental review in support of that permit adopted a recent environmental analysis of the Gulf of Mexico by another federal agency. The plaintiffs argue that federal law required EPA to perform a separate and redundant environmental review. If their argument prevails, EPA would be required to undertake time-consuming environmental reviews for a range of new energy infrastructure projects and any other economic activity that could impact the environment. Those delays would in turn delay new projects. In support of the defendant EPA, the NAM filed an amicus brief that highlights the importance of oil and natural gas development to the national economy and energy security and argues that EPA's adoption of the related environmental review is lawful, appropriate, and consistent with past practice. In a win for manufacturers, on August 30, 2019, the court dismissed the plaintiff's claims for lack of standing.

The MCLA intervened in a lawsuit by environmental groups that seeks to overturn an EPA rule implementing the Toxic Substances Control Act (TSCA). The rule, “TSCA Inventory Notification (Active-Inactive) Requirements,” governs the process whereby the EPA must update the list of chemicals used in commerce in the United States. The EPA’s final rule allowed companies to keep certain information about the chemical free from public disclosure on confidentiality grounds. An environmental group sued to challenge the rule, arguing that the EPA failed to comply with various procedural requirements in promulgating the rule and that the rule unlawfully shields information from public disclosure. The confidentiality of chemical information is critically important to chemical manufacturers. To help defend the rule, the MCLA intervened in the case. On June 26, 2019, the D.C. Circuit Court of Appeals rejected all but one of the plaintiffs’ claims. It broadly upheld the confidentiality aspects of the rule of greatest concern to chemical manufacturers. Given the EPA’s relatively minor procedural misstep on only one aspect of the rule, the court allowed the rule to continue in force while the EPA addresses the procedural error.

In 2015, a coalition of states led by Georgia sued the U.S. Environmental Protection Agency (EPA) to challenge an EPA regulation governing jurisdictional "Waters of the United States" (WOTUS) under the Clean Water Act. Soon after Georgia filed suit, the court stayed the litigation while a separate federal appellate court asserted jurisdiction to resolve the case. In January of 2018, the U.S. Supreme Court ruled that challenges to the WOTUS rule should be heard in federal district courts. The Georgia district court thereafter reopened the case to allow Georgia's suit to proceed.

The NAM's litigation coalition moved to intervene in the case to bring the voice of manufacturers to the case. The 2015 WOTUS rule defines which waters and land areas require a permit under the Clean Water Act for discharges of pollutants to those areas. The rule’s definitions and prohibitions are complex and vague, and often require case-by-case determinations by the agencies. Manufacturers will be required to undertake expensive and laborious efforts to determine whether landscape features on their property are jurisdictional. Penalties for unpermitted discharges (which can include simply moving dirt or mud without a permit) are tens of thousands of dollars per day, per violation.

On July 10, 2018, the Court granted the NAM's intervention. On August 31, 2018, the NAM filed its motion for summary judgment with the court, and on September 26, 2018, filed a motion for a nationwide injunction against the rule. In a major win for manufacturers, the court on August 21, 2019, invalidated the rule on procedural and substantive grounds, including that the regulation seeks to impose federal jurisdiction beyond the limits imposed by the Clean Water Act.

The NAM filed an amicus brief to oppose New Jersey’s efforts to stop construction of a major new proposed natural gas pipeline to deliver natural gas from Pennsylvania to the eastern United States. The proposed PennEast Pipeline is natural gas transmission pipeline to bring abundant and low-cost natural gas from northeastern Pennsylvania to manufacturers, power generators, and other customers in New Jersey and throughout the eastern United States. The state of New Jersey resisted the pipeline's exercise of eminent domain under the federal Natural Gas Act, arguing that the 11th Amendment to the U.S. Constitution prohibits federal courts from effectuating the eminent domain over lands in which the state has a property interest (such as a conservation easement). If New Jersey's argument prevails, it would give that state and others a unilateral veto over federally approved natural gas transmission pipelines. Those vetoes would restrict future pipeline infrastructure development, leading to lower availability of natural gas and increased costs to manufacturers for natural gas, electricity, and other products derived from natural gas. The NAM's amicus brief explains the practical implications of New Jersey's argument and argues why the 11th Amendment does not support the state's interpretation. In a troubling decision for manufacturers, the Third Circuit on September 10, 2019, held that New Jersey's sovereign immunity bars eminent domain proceedings against New Jersey under the Natural Gas Act. On October 29, 2019, our coalition petitioned the court for rehearing and rehearing en banc, in which we highlighted the 3rd Circuit's significant disruption of new energy infrastructure development and why the full 3rd Circuit court should hear the case en banc. Unfortunately, the court denied en banc review.

The NAM filed an amicus brief in a case involving the state of Washington’s authority to prohibit certain exports from Washington’s coastal ports. Washington state denied several environmental permits necessary to construct a new coal export terminal near Longview, Washington. The denials were improperly based on climate concerns about the use of coal for electricity generation in foreign countries. The state’s actions have dangerous implications for the power of individual states to interfere with interstate and international trade. The NAM’s amicus brief argued that this interference is unconstitutional and harms the national economy. Unfortunately, the district court rejected the plaintiffs' claims. The plaintiff appealed to the 9th Circuit, where the NAM filed another amicus brief on their behalf.

In April of 2018, the NAM filed an amicus brief that asked the Colorado Supreme Court to reverse an appellate ruling that required the Colorado Oil and Gas Conservation Commission (COGCC) to consider a rulemaking request that would have effectively banned oil and natural gas development in Colorado. A group of Colorado residents filed the rulemaking proposal for the purpose of restricting fossil fuel development, and hydraulic fracturing in particular. On January 14, 2019, the Colorado Supreme Court ruled that the COGCC properly rejected the rulemaking proposal. This ruling benefits energy producers and manufacturers in Colorado and beyond by ensuring the continued supply of abundant and cost-effective energy.

In 2015 the NAM sued the U.S. Environmental Protection Agency to challenge its final rule lowering the ozone National Ambient Air Quality Standard (NAAQS) from 75 to 70 parts per billion. The rule could be one of the most expensive in history and burden manufacturers by limiting their air emissions and ability to grow and expand operations. The NAM seeks to invalidate the standard and secure an instruction from the court to raise the standard. The court stayed litigation in April 2017 to allow the new presidential administration to determine whether to revise the standard. On August 1, 2018, EPA announced that it would not revise the standard but instead expedite the consideration and issuance of the 2020 NAAQS standard. In August of 2019, the D.C. Circuit upheld the 2015 ozone NAAQS standard of 70 ppb against claims by environmental groups that the standard is too lax, but also rejected arguments by the NAM and other industry groups and states that the standard is too strict and fails to properly account for background sources of ozone. This ruling avoids the serious economic consequences that would have come with the court mandating a lower standard.

The NAM intervened in a legal challenge by environmental groups to a policy by the U.S. Environmental Protection Agency that clarifies manufacturers' permitting obligations under the Clean Air Act. The lawsuit seeks to invalidate an EPA interpretive memorandum that identifies factors to guide a facility’s determination of whether separate physical or operational changes to the facility constitute a single project” under the EPA’s New Source Review (NSR) permitting program. Determining the extent of a project under NSR is important for many manufacturers because combining several pollution sources at a facility can trigger NSR permitting requirements that mandate expensive air pollution control technologies. The NAM intervened as a defendant on behalf of the EPA to help defend the interpretation and preserve regulatory clarity for manufacturers. On June 25, 2019, the environmental plaintiffs moved to dismiss their case. Although their dismissal motion did not state the reasons, we infer that our intervention arguments might have caused them to realize the weakness of their case.

The NAM filed an amicus brief to argue that the Federal Energy Regulatory Commission (FERC), when reviewing a pipeline company’s permit application for a new pipeline infrastructure project, does not have a categorical obligation under federal law to forecast the speculative greenhouse gas impacts of possible uses of the natural gas by unknown and unknowable customers of the natural gas. The case arises from FERC’s approval of upgrades to an existing natural gas pipeline in New York state. In reviewing the environmental impacts of those upgrades under the National Environmental Policy Act (NEPA), FERC declined to undertake a speculative analysis of the greenhouse gas impacts of the possible uses of the natural gas by the ultimate customers of the gas. An environmental group sued FERC to challenge that determination. In FERC’s defense, the NAM filed an amicus brief to support FERC’s approach of determining on a case-by-case basis whether a greenhouse gas analysis is appropriate for a particular energy infrastructure project. This approach is important to manufacturers because it avoids prolonged and speculative environmental reviews that opposition groups can use as a basis to challenge and delay new energy infrastructure development. On May 9, 2019, the court found the plaintiffs lacked standing and therefore dismissed the case.

The NAM intervened in a legal challenge by environmental groups to the EPA’s delayed implementation of the 2015 rule governing jurisdictional “Waters of the United States” (WOTUS) under the Clean Water Act, and to that rule’s jurisdictional exception for waste treatment systems. After a change in presidential administrations in early 2017, the EPA delayed the effective date of the 2015 WOTUS rule until February 2020. The purpose of that delay was to preserve the pre-rule status quo while the EPA proposes and finalizes a replacement WOTUS rule. A coalition of environmental groups sued to challenge that delay. On November 26, 2018, the court found that the delay failed to comply with applicable procedural requirements. The court invalidated the delay rule, thereby causing the 2015 WOTUS rule to come back into effect.

After this procedural win, the environmental plaintiffs then turned their attention to the merits of the 2015 WOTUS rule. In May of 2019, the plaintiffs filed a motion for summary judgment to seek to invalidate the 2015 WOTUS rule’s exception of waste treatment systems from Clean Water Act jurisdiction. Waste treatment systems are essential elements of various industrial operations. They are used in mining, power generation, pulp and paper mills, manufacturing, infrastructure, and a host of other activities. Waste treatment systems prevent pollution by treating, settling, retaining, or removing pollutants before being discharged into rivers, lakes, streams, or other waters. The NAM’s litigation coalition filed a motion opposing the plaintiffs’ summary judgment motion. In our brief we explained the environmental benefits of waste treatment systems and the Clean Water Act’s express allowance and process for creating and issuing permits for those systems. We also attacked the plaintiffs’ standing to bring the challenge.

In a great win for manufacturers, the court on November 25, 2019, dismissed the plaintiffs' case for lack of standing.

On February 6, 2018, the EPA issued a final rule that adds an applicability date of February 6, 2020, to the EPA’s 2015 rule governing jurisdictional "Waters of the United States" under the Clean Water Act (2015 WOTUS rule). A coalition of environmental groups sued EPA to challenge the rule, arguing that EPA lacks the statutory authority to impose an applicability date. The applicability date rule is important to manufacturers because it precludes application of the 2015 WOTUS rule while EPA develops and issues a sensible replacement WOTUS rule. The 2015 WOTUS rule asserts federal jurisdiction over millions of acres of landscape features throughout the United States, triggering permitting requirements that will slow development and increase permitting costs on manufacturers. The rule’s vague and ambiguous terms also create confusion and increase the risk of inadvertent violations. The NAM intervened in the litigation to help EPA defend the applicability date rule to allow EPA the necessary time to develop and issue a new WOTUS rule. On August 16, 2018, the court ruled in the plaintiffs' favor, finding that EPA violated the Administrative Procedure Act by failing to request and consider comments on the flaws of the 2015 WOTUS rule and by refusing to consider the substantive implications of suspending the rule.

In 2015, the NAM challenged the EPA’s Clean Power Plan, a rule that went beyond the EPA’s legal authority to regulate carbon dioxide emissions under the Clean Air Act. Before the rule became effective, the U.S. Supreme Court stayed the rule pending the resolution of the litigation. Then, in 2017, the D.C. Circuit held the litigation itself in abeyance to allow the incoming administration to decide whether to rescind or revise the rule. The EPA proposed a replacement rule—the Affordable Clean Energy Rule—in August 2018. A final rule issued in June 2019. With the Clean Power Plan rule replaced by the Affordable Clean Energy Rule, the parties moved to dismiss the case. On September 17, 2019, the court dismissed the case as moot.

The NAM and other associations and companies involved in the manufacture or use of beryllium filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit seeking an administrative stay of U.S. Occupational Safety and Health Administration’s (OSHA) new rule regulating beryllium and to reopen the rulemaking record. Beryllium is critical to some manufacturing processes and products, and OSHA did not adequately address industry’s concerns about overly restrictive provisions of the new rule.The NAM requested that the effective date of the standards be delayed for six months, and that OSHA re-open the rulemaking record to allow comment on the substantial changes made between issuance of the proposed rule and adoption of the final rules, and to allow the new Secretary of Labor to take office and have adequate time to consider the standards in accordance with a new policy to freeze and review all holdover regulations. OSHA agreed to undertake a new rulemaking to propose and implement sweeping changes to the regulation that will benefit companies that manufacture and use beryllium.

The NAM filed an amicus brief in the U.S. Supreme Court in support of Constitution Pipeline Company’s authority to construct a new natural gas pipeline from Pennsylvania to New York State. New York rejected the proposed pipeline because the state disagreed with the pipeline’s proposed route. Because routing decisions for natural gas pipelines are within the power of the Federal Energy Regulatory Commission, New York’s denial improperly encroached on FERC’s siting authority. The NAM’s brief argued that the Supreme Court should hear this case because New York’s rejection violates the law and would harm manufacturers and other users of natural gas. Unfortunately, the Court denied certiorari.

This is one of several cases filed in various courts challenging the EPA's new rule regarding the scope of its jurisdiction over land in the United States that is subject to permitting requirements of the Clean Water Act. The issue on appeal before the 11th Circuit is whether a federal appeals court has jurisdiction to hear challenges to the rule in the first instance.

The NAM and others in a coalition of organizations challenging the EPA rule argued that nothing in the Clean Water Act says that our challenge should go first to the appeals court. Rather, we argued that a federal district court is the proper forum for filing suit. Only a few exceptions are written into the Clean Air Act, and none of them applies in the challenge to the waters rule.

The court ruled on August 16, 2017, to stay the case pending the outcome of the Sixth Circuit's jurisdictional determination. On January 22, 2018, the U.S. Supreme Court ruled that jurisdiction over the various WOTUS challenges belong in the district courts. The 11th Circuit thereafter remanded the case back to the district court.

The NAM filed an amicus brief in the Ninth Circuit to oppose a district court decision that broadly interpreted the scope of liability under the Clean Water Act. The district court adopted a liability theory, the "conduit theory," which stated that any pollutants released to dry land or underground that might seep into groundwater then to nearby surface waters are an illegal "discharge" under the Clean Water Act (CWA). That ruling could impose incalculable liability risk on manufacturers and other regulated industries. The NAM’s brief argued that the CWA clearly distinguishes between point sources and nonpoint sources, and the conduit theory impermissibly extends the EPA's authority. Unfortunately, the Ninth Circuit affirmed the district court’s ruling.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit to oppose lawsuits by environmental plaintiff groups that sought to massively expand manufacturers’ liability under the Clean Water Act. In a lawsuit against electric generation facilities, the plaintiffs argued that federal jurisdiction applies to all groundwater throughout the United States (in addition to certain categories of surface waters). If that theory of jurisdiction prevails, manufacturers could be subject to massive and unpredictable liability for any impacts their operations may have on groundwater. The NAM’s amicus brief argued against this overbroad theory of liability. The Sixth Circuit ruled against the plaintiffs and in favor of manufacturers by rejecting the plaintiffs’ claims and holding that the Clean Water Act does not apply to discharges to groundwater.

The NAM filed an amicus brief in support of Monsanto urging the California Supreme Court to grant review of this case to address the serious constitutional questions presented by California’s Proposition 65, which maintains a list of chemicals that can potentially cause cancer, birth defects and other reproductive harm. If a product contains or produces any of the chemicals on that list, manufacturers are required to place a warning label on that product before it may be sold in California. In addition, Proposition 65 requires that a chemical be automatically listed if the International Agency for Research on Cancer (IARC) classifies it as carcinogenic. What chemicals are listed is important because of the costs borne by manufacturers and the public by the listing of a chemical under Proposition 65. The NAM’s brief argued that substances listed under Proposition 65 should be based on sound and generally-accepted science and that delegating that authority to IARC is unconstitutional. Unfortunately, the California Supreme Court denied review of this case.

The NAM intervened in a group of consolidated cases challenging a final rule from the EPA defining its jurisdiction over navigable “Waters of the United States” under the Clean Water Act (CWA). Federal law specifies that, while most lawsuits are filed in federal district courts, some suits must be filed directly in the federal courts of appeals. The statute that provides appellate jurisdiction for certain challenges to EPA regulations does not apply to the WOTUS challenge, though the EPA argued that it did. Prompt resolution of this jurisdictional issue was important so that the WOTUS case could proceed expeditiously through the courts. The NAM’s brief explained that certain legal challenges, such as this issue, belong in the federal district courts and argued that this is not the type of appeal from agency rulemakings under the CWA that is limited to the federal appeals courts by statute. On January 22, 2018, the Supreme Court held that jurisdiction properly belongs in the federal district courts.

The MCLA secured a 9–0 victory in the U.S. Supreme Court that resolved a procedural obstacle that had delayed the appropriate federal court from considering legal challenges to the Environmental Protection Agency’s (EPA) 2015 “Waters of the United States” (WOTUS) Rule. This legal win cleared the path for the MCLA’s lawsuit to invalidate the rule to proceed in federal district court, where the U.S. District Court for the Southern District of Texas ultimately invalidated the rule and remanded it back to the EPA for reproposal.

The NAM intervened in a lawsuit in the U.S. Court of Appeals for the Second Circuit to support the EPA’s new regulations on chemicals under the updated Toxic Substances Control Act (TSCA). The Natural Resources Defense Council (NRDC) claimed that the new standards put consumers at risk of harmful exposure. In this case, NRDC challenged Section 5 of TSCA, which deals with the risk assessment standard for significant new use rules (SNURs) for chemicals. This challenge could have been harmful to manufacturers by potentially hindering approvals of new uses of chemicals. The NAM intervened to support EPA and attacked NRDC’s standing to bring the case. The NAM argued that the proposed rule is not subject to challenge, is consistent with TSCA and would protect human health and the environment. Soon after the NAM filed its principal brief in the case, NRDC moved to dismiss its case with prejudice, which the court granted.

The NAM intervened in a case before the U.S. Court of Appeals for the D.C. Circuit involving a 2015 EPA Rule regarding environmental restrictions on industrial boilers. The rule requires maximum achievable control technology (MACT) for equipment to reduce emissions of hazardous air pollutants, taking into consideration the cost of achieving such reductions. There are two primary issues in the case: (1) whether the EPA properly established a minimum standard level of 130 parts per million (ppm) of carbon monoxide for certain boiler emissions and; (2) whether the EPA reasonably established work practice standards for periods of startup and shutdown where it is impracticable to determine compliance with numerical standards during those periods. Manufacturers would bear a large burden and financial hardship if the Sierra Club prevailed in its challenge to this rule. Our brief argued that EPA properly justified setting the limit at 130 ppm for carbon monoxide as a proxy for hazardous air pollutants The court held that the 130 ppm limit is reasonable and also held that the rule’s flexibility on emissions during startup and shutdown of the boilers is reasonable and consistent with the Clean Air Act. The plaintiffs filed a petition for rehearing with the court, which the NAM opposed, and the court denied the rehearing request.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Sixth Circuit to oppose lawsuits by environmental plaintiff groups that sought to massively expand manufacturers’ liability under the Clean Water Act. In a lawsuit against electric generation facilities, the plaintiffs argued that federal jurisdiction applies to all groundwater throughout the United States (in addition to certain categories of surface waters). If that theory of jurisdiction prevails, manufacturers could be subject to massive and unpredictable liability for any impacts their operations may have on groundwater. The NAM’s amicus brief argued against this overbroad theory of liability. The Sixth Circuit ruled against the plaintiffs and in favor of manufacturers by rejecting the plaintiffs’ claims and holding that the Clean Water Act does not apply to discharges to groundwater.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit in an appeal to a court ruling which held that challenges to the EPA’s rule establishing jurisdiction over waters of the United States should be heard in appellate courts, rather than in district courts. Federal law specifies that, while most lawsuits are filed in trial courts, a few types of suits must be filed directly in the federal courts of appeals; however, the statute that provides appellate jurisdiction for certain challenges to EPA regulations does not apply to this challenge. Resolving this procedural issue is an important first step in resolving substantive arguments by many states and members of the business community against EPA’s decision to assert jurisdiction over many areas of the country previously not under their jurisdiction. The NAM’s brief argued that the district court erred when it deferred to the U.S. Court of Appeals for the Sixth Circuit’s jurisdictional decision and that the district court, in fact, had jurisdiction over plaintiffs’ complaint. On January 22, 2018, the Supreme Court ruled unanimously in favor of the NAM's position in a case that determined that district courts, rather than appellate courts, should be the first courts to hear challenges to the new regulation defining the waters of the United States.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit to support Kinder Morgan’s request for a rehearing of a lawsuit by environmental plaintiff groups that sought to expand the scope of liability under the Clean Water Act. The case involved a pipeline release of gasoline to dry land, which then allegedly migrated through groundwater to a nearby stream. The plaintiffs alleged that the gasoline seepage to the stream violated the Clean Water Act. This case is significant for manufacturers because the plaintiffs’ theory would impose massive liability for any pollution to dry land (no matter how insignificant) that migrates through groundwater to nearby surface waters. The plaintiffs lost in federal district court but prevailed on appeal to the Fourth Circuit. The NAM’s brief explained how the Fourth Circuit’s decision conflicts with Supreme Court and appellate court precedent. The Fourth Circuit denied the petitions for rehearing and rehearing en banc.

The NAM filed an amicus brief in the U.S. Supreme Court to oppose government overreach under the Endangered Species Act (ESA) that restricts land use in the name of helping an endangered species that does not even live on the land. The U.S. Fish and Wildlife Service (FWS) declared 1,544 acres of private property in Louisiana as “critical habitat” for the dusky gopher frog, which does not live on that property and could not even survive there under current conditions. Such designations can significantly harm manufacturers and other landowners by severely restricting land use activities and driving up permitting costs and delays. The NAM’s brief in support of the landowner argued that FWS exceeded its statutory authority under the ESA and highlighted how FWS’s actions imposed significant harm and business uncertainty on manufacturers. The Supreme Court issued a largely favorable decision for manufacturers and remanded to the lower court the question of whether the property at issue even qualifies as habitat for the frog (a question that suggests the answer is “no”) and ruled that an agency’s critical habitat designation is subject to judicial review.

The NAM challenged two final regulations promulgated by the Environmental Protection Agency (EPA) that define hazardous solid waste and would impose stringent regulatory obligations governing waste generation, treatment, storage, disposal and permitting. The EPA asserted jurisdiction to regulate solid and hazardous waste under the Resource Conservation and Recovery Act (RCRA), which defined “hazardous waste” as “solid waste” that may pose a danger to human health or the environment. The definition is important to manufacturers that reuse materials in the manufacturing process, as well as for disposal and recycling procedures. The NAM sued the EPA to resolve concerns related to new affirmative duties and conditions on in-process materials that are not discarded. The NAM argued that EPA’s attempt to regulate materials that are not yet waste exceeds the agency’s authority. In a win for manufacturers, the court held that that some of the requirements imposed on companies using third-party recyclers exceeded the EPA's statutory authority and improperly presumed that recycled materials were discarded simply because the recyclers did not meet various paperwork requirements.

The NAM asked the California Supreme Court to review a case challenging a greenhouse gas cap-and-trade auction system created by California’s Air Resources Board (CARB) as an unauthorized tax disguised as a regulatory action. This was an appeal of an adverse decision where the lower court held that revenues collected by CARB from California businesses, which must acquire greenhouse gas emissions allowances from the state in order to remain in business, are not taxes subject to Proposition 13. Proposition 13 requires an authorization by two-thirds of the legislature. This decision brings uncertainty to California manufacturers who are now unsure of the application to any other financial exactions. The NAM argued that the California Supreme Court did not apply existing precedent to assess whether a charge imposed for regulatory purposes is a tax, and by rejecting that precedent, the court provided a roadmap for the evasion of Proposition 13. Furthermore, the lower court’s holding defies precedent, the record evidence and common sense, and taken to its logical conclusion, would mean that virtually all taxes are “voluntary.” Unfortunately, the California Supreme Court declined to hear this appeal.

This suit, filed by the NAM, CMA, American Automobile Manufacturers Association, American Petroleum Institute, Electronics Industry Association, and the Chamber of Commerce of the United States, challenges an EPA policy that allows municipalities to avoid some liability for Superfund cleanup costs. It affects all companies at "co-disposal" Superfund sites (with both industrial and municipal wastes), by allowing municipalities to escape liability by paying a fixed price for cleanup costs. The suit was dismissed by U.S. District Court for the District of Columbia for lack of jurisdiction (EPA's policy was not "final agency action") on 11/16/98. A similar suit filed in the D.C. Circuit was stipulated for dismissal on 7/2/98 by the EPA.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Second Circuit supporting Constitutional Pipeline in an energy infrastructure litigation suit after New York state denied a permit for construction of a natural gas pipeline through part of the state, although the Federal Energy Regulatory Commission (FERC) approved the project. The Clean Water Act permit was denied after extensive environmental, safety and economic review, and approval by FERC. This litigation is important to manufacturers because state intervention can impede the efficient, transparent and predictable approval of natural gas pipelines even when those projects have been approved by other agencies. The NAM’s brief argued that FERC conducted a thorough review process that assessed the environmental impact of the pipeline as required by the National Environmental Policy Act and the Natural Gas Act and that although states should play an important role in the pipeline approval process, states should not be permitted to override FERC’s assessment of a pipeline’s benefits and environmental impact. Unfortunately, the court rejected the arguments and deferred to the judgment of state officials.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit arguing that courts should not apply new conditions to an existing National Pollution Discharge Elimination System (NPDES) water discharge permit when the regulatory agency has already considered those conditions and did not require them in the permit. Although West Virginia’s permit included boilerplate language that prohibited discharges that cause violations of state water quality standards, the district court used the boilerplate language to convert those water quality standards into enforceable effluent limits in the permit. That decision is important as NAM members who hold these permits with similar boilerplate language may now be subjected to civil and criminal penalties and injunctive action. The NAM’s brief argued that Fola was entitled to protection from the permit and that the district court’s interpretation usurps the state’s authority to establish water quality standards. Unfortunately, the Fourth Circuit did not agree with NAM’s arguments, leaving current permit holders liable for discharges that are otherwise permitted at the time of issuance.

The NAM filed an amicus brief urging California’s Supreme Court to review a series of cases that grant a private right of action to impose liability for environmental remediation, regardless of prior remediation efforts and regulatory action. Historically, California businesses were able to rely on state agency direction when remediating contaminated sites, potentially obtaining a “No Further Action” letter that signified the sites were safe for productive economic use; businesses would only face liability for additional remediation in exceedingly rare cases. Private liability for environmental remediation undermines the relationship between businesses and regulators and discourages proactive remediation efforts. The NAM’s brief explained that these cases will discourage both voluntary remediation and swift compliance with regulators’ Remedial Action Plans, which runs counter to the interest of California citizens and discourages cooperation between businesses and regulators. Unfortunately, the California Supreme court denied review.

The NAM submitted an amicus letter urging the Texas Supreme Court to grant review of a lower court decision that did not clarify whether the Federal Clean Air Act and the Texas Clean Air Act preempt state tort law claims for damages. The issue stemmed from an earlier claim where residents near natural gas compressor stations and a metering station sued alleging that the facilities interfered with their rights by generating noise and fumes. If tort law claims like these are not preempted by the federal or state Clean Air Act, manufacturers would be exposed to massive additional liability. The NAM argued that both the Federal Clean Air Act and the Texas Clean Air Act preempt state tort claims for damages against facilities lawfully operating under the regulations. The matter remains unsettled as the court dismissed petitioners appeal on other grounds.

The NAM intervened in a suit brought by the Sierra Club and Natural Resources Defense Council against the EPA for its regulation on sulfur dioxide (SO2). The regulation, published August 5, 2013, designated 29 areas as “nonattainment” for SO2 based on recorded air quality monitoring data, and the EPA announced its intention to address the rest of the country in separate regulations in the future. The modeling predictions urged by the Sierra Club would allow areas to be designated as nonattainment when in fact they are not. That would increase the number of such areas, and manufacturers would have to spend billions of dollars to achieve far greater emission reductions than would be required if designations were based on actual air quality monitoring data. The NAM intervened to help secure a more positive regulation for manufacturers. A district court approved a consent decree requiring the EPA to include any areas with stationary sources that emitted more than 16,000 tons of SO2 in 2012 and extending the timeline for the EPA to promulgate a new rule. The deadline is now December 31, 2020, which will allow for real-life modeling data to be used instead of the Sierra Club's recommendation of computer modeling. This is a favorable outcome for manufacturers. The consent decree was appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the district court’s approval.

The NAM filed an amicus brief supporting the continuance of Dakota Access Pipeline (DAPL) operations. The litigation arose from alleged deficiencies in National Environmental Policy Act review, assessment and analysis following a procedural error in the U.S. Army Corps’ Environmental Assessment. This issue is important to manufacturing as halting DAPL would significantly impede access to crude oil on which manufacturers heavily rely. The NAM’s brief argued that halting operations due to a procedural error is not an appropriate remedy but would instead produce serious and irreparable harm including harm to energy businesses, states benefiting from DAPL operations and individuals employed through DAPL. The court agreed with the NAM’s arguments that the pipeline should be permitted to continue operations while the U.S. Army Corps of Engineers conducted further NEPA review.

The NAM filed an amicus brief in support of TransCanada’s challenge to the Obama Administration’s disapproval of a cross-border permit for the Keystone XL pipeline. The denial violates the separation of powers and would directly affect U.S. trade with other nations. The NAM’s brief argued that the president’s justification for denial was not based on national security but was instead intended to regulate foreign commerce, which is an impermissible exercise of the foreign affairs power to usurp Congress’s authority over foreign commerce. This matter was dismissed as moot when the new administration granted the pipeline permit.

The NAM challenged an Environmental Protection Agency (EPA) final rule on hazardous air pollutants, which imposes burdensome regulatory requirements on boilers, incinerators and process heaters. The rule requires “generally available control technologies” (GACT) or management practices to reduce emissions of hazardous air pollutants, taking into consideration the cost of achieving such reductions. This rule imposes costly compliance requirements on manufacturers subject to the rule. The NAM argued that 1) the EPA did not have sufficient data to property calculate an emissions standard based on the best performing 12% of combustions units as statutorily required but instead used the Upper Prediction Limit (UPL) methodology to estimate the emissions limits based on fewer data points; and 2) by requesting a voluntary remand, the EPA effectively conceded that the methodology used to calculate the UPL standards is flawed. While the court rejected the NAM’s arguments in 2016, it ordered the agency to provide further justification for some of its conclusions.

The NAM filed an amicus brief supporting oil and gas exploratory drilling that complied with the National Environmental Policy Act (NEPA). Environmental groups challenged the issuance of a permit by the Bureau of Ocean Energy Management (BOEM) allowing exploratory drilling by Shell in Alaska. This case is important because attempts to prevent oil and gas exploration significantly impact access to energy sources and stifle job growth. The NAM’s brief argued that the Outer Continental Shelf (OCS) Lands Act was specifically designed to expedite OCS exploration and development and that BOEM properly approved Shell's revised exploration plan pursuant to NEPA. Shell terminated its exploratory efforts, and the court granted the parties' request to dismiss the case as moot.

The EPA has exerted control over land uses in the Chesapeake Bay watershed by dictating the minute details of what can be discharged into it and reserving to itself authority to approve any future changes necessary to allow for state and local adjustments to the mix of land uses within their jurisdictions. Congress neither envisioned nor authorized this expansion of EPA’s authority in the Clean Water Act.

This micromanagement upends the model Congress intended for the Clean Water Act. Local businesses throughout the Chesapeake Bay watershed must now comply with a regulatory scheme that imposes new federal burdens on businesses and industry formerly regulated by the states, impedes state programs to address state water quality issues, and limits opportunities for growth and innovation. Allowing the EPA’s control to stand would provide the EPA nearly unchecked power over land use decisions affecting local businesses throughout the nation.

The NAM filed an amicus brief urging the Supreme Court to review an adverse decision from the Third Circuit that allows such micromanagement by the EPA. Our brief argued that this overreach is not authorized by the Clean Water Act because it makes individual permit holders responsible for excess effluents from others. It severely constrains companies with discharge permits and delays revisions and approvals, disfavoring innovation and growth and curtailing development.

On Feb. 29, the Court declined to review this appeal.

The NAM challenged the Environmental Protection Agency’s (EPA) new regulations on commercial and industrial solid waste incineration (CISWI) units that impose stricter emissions limits on industrial, commercial and institutional boilers. The new rule amended a rule previously issued in 2011 by placing further restrictions on materials used as fuels or ingredients in combustion units. The regulations will impose additional costs on manufacturers that will now require additional resources to remain compliant with the regulations. The NAM argued that 1) the EPA failed to account for variability in waste materials when classifying best-performing units; 2) the EPA should consider emissions occurring during startups, shutdowns and malfunctions when determining whether emissions limits are achievable; and 3) the EPA does not have legal authority to impose recordkeeping requirements through the CISWI rule on operators who combust non-hazardous secondary materials that are not waste. Although the court rejected the NAM’s arguments, it ordered the agency to provide further justification for some of its conclusions.

The NAM challenged an Environmental Protection Agency (EPA) effort to interpret its authority with the “Tailoring Rule,” which attempts to regulate greenhouse gas emissions from stationary sources. After earlier interpretations of the rule caused absurd consequences, the EPA raised thresholds to impact only the largest emitters of greenhouse gases. The rule will impose significant administrative and cost burdens on manufacturers. The NAM argued that 1) the EPA could have adopted a more reasonable interpretation of its power so as to avoid the absurdities the rule attempts to mitigate; 2) although the EPA tried to avoid these absurd results by modifying the express statutory thresholds defining who is regulated, the action is outside of the EPA’s legal authority; and 3) as the rule is at odds with Congress’s intent when it enacted the Clean Air Act, the court must avoid agency interpretations that undermine the purpose of the law. The parties voluntarily dismissed this case in February 2016.

The NAM filed an amicus brief urging the Supreme Court of Texas to overturn a lower court ruling that allowed the City of Houston to run its own clean air enforcement office. BCCA Appeal Group, Inc. sued after the City of Houston issued an ordinance allowing criminal prosecutions, without following the procedures required by the Texas Water Code and mandating that all facilities be registered with the city. If upheld, the regulation would have subjected manufacturers to inconsistent enforcement requirements and multiple permit systems at the local level. The NAM’s brief argued that such local enforcement is preempted under provisions of the Texas Constitution by the Texas Clean Air Act. The court agreed with NAM’s arguments that Houston may not subject companies to criminal penalties that conflict with the requirements of the Texas Clean Air Act.

The NAM filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit supporting BP’s challenge to a district court’s improper findings of fact and conclusion of law. Under a procedure known as multidistrict litigation (MDL), most cases in federal courts involving the Deepwater Horizon accident were sent to a single district court in Louisiana for consolidated pretrial proceedings. The MDL district court correctly determined that under the Fifth Circuit’s standard BP was not liable for punitive damages but incorrectly opined that BP would be liable in other circuits where some of the cases consolidated in the MDL originated and may ultimately return for trial. That incorrect comment had the potential to undermine the efficiency and fairness established through the MDL procedure and create judicial inefficiencies. The NAM’s brief argued that the MDL judge wrongly opined on the availability of punitive damages under standards applied by other circuits and instead should have focused only on the law of the Fifth Circuit. The case was dismissed by stipulation of the parties.

The NAM challenged an Environmental Protection Agency (EPA) final rule on hazardous air pollutants, which would impose burdensome regulatory requirements on boilers, incinerators and process heaters. Because the rule requires the “maximum degree of reduction” in emissions of hazardous air pollutants achievable, taking into consideration the cost of achieving such reductions, the rule also requires “maximum achievable control technology” (MACT) for such equipment. This rule is burdensome, will impose additional costs and require additional resources for industrial sectors subject to the rule. The NAM argued that 1) the startup work practices were incorporated into the new rules without giving key stakeholders adequate opportunity to comment; 2) important safety considerations for the regulated community were overlooked in the definitions; 3) the rule failed to take account of the importance of encouraging efficient and cost effective use of resources; 4) the fuel requirements in the rule do not incorporate national goals of safeguarding fuel diversity; and 5) the EPA does not have legal authority to impose the energy assessment requirement. This case was consolidated with U.S. Sugar Corp. v. EPA, a similar challenge to EPA’s boiler MACT regulations, and in 2016, that court rejected all industry arguments, finding that the EPA's approach was reasonable.

The NAM filed an amicus brief in a challenge to a new Department of Energy (DOE), energy-efficiency standard for walk-in coolers and freezers. The new standard used a calculation of the “social cost of carbon” when aggregating purported benefits of the standard but was, however, not subjected to peer review, thus calling into question the quality and accuracy of the data used. This issue is important to manufacturers because DOE violated established requirements that influential information used by federal agencies to inform public policy decisions be developed through a transparent process. The NAM’s brief argued that the “social cost of carbon” estimates were developed by an ad-hoc interagency working group operating behind closed doors and outside the purview of notice-and-comment rulemaking or other meaningful public scrutiny. The case settled and was dismissed in 2016.

The NAM petitioned the Environmental Protection Agency (EPA) to issue an administrative stay to delay the effective date of the Clean Power Plan rule until a court rules on the rule’s legality. The rule, issued as a regulation of greenhouse gases from electric utility generating units, went much further than regulation of electric power plants. If the rule were to take effect, manufacturers would see their costs increase and some trade-exposed industries might be forced to relocate production overseas. The NAM’s petition argued that 1) the rule was already causing irreparable harm by forcing the closure of vast numbers of existing coal-fired generating units, constituting the backbone of the American electric grid; 2) that legal challenges to the rule are likely to prevail in court, since the Clean Air Act expressly forbids EPA from regulating existing fossil fuel-fired generating; and 3) the rule imposed standards of performance for the entire energy sector, rather than only for the individual sources of greenhouse gases from the power plants themselves. Although the EPA denied our petition, the U.S. Supreme Court issued a nationwide stay of the rule on Feb. 9, 2016, until the litigation over the rule is completed. Further developments in this case can be found .

The NAM filed an amicus brief in the U.S. Court of Appeals for the Eight Circuit challenging a Minnesota regulation, the Next Generation Energy Act (NGEA), which would have placed significant burdens on coal-fueled facilities and unlawfully regulated out-of-state commerce. The NGEA, sought to regulate and impose energy and environmental policies on electricity generated in other states by prohibiting importing electricity into Minnesota from any new large energy facility that would contribute to statewide power sector carbon dioxide emissions. If upheld, this matter would have caused uncertainty to manufacturers in the energy sector and others impacted by the NGEA. The NAM’s brief argued that 1) the law would substantially impede the interstate market for electricity in violation of the Commerce Clause; 2) the law could spur other states to adopt similar laws, which could result in a web of inconsistent and clashing local regulations that would destroy the national common market and impose untold costs on manufacturers and other consumers; and 3) the law was unconstitutional because it purported to allow a state to ban imported products based solely on how they were produced in other states. In a win for manufactures, the Eighth Circuit struck down Minnesota's law.

The NAM filed an amicus brief opposing the expansion of arranger liability under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). This is an appeal from a lower court holding that a Canadian company was liable as an “arranger” of the “disposal” of the hazardous materials under CERCLA after airborne particles from its mining operations landed on the earth and water of the United States. As emissions can travel long distances by air, expanding arranger liability will expose manufacturers to expensive litigation. The NAM’s brief argued that both the plain text of CERCLA and controlling precedent make it clear that the statutory definition of “disposal” is not satisfied by the mere emission of hazardous substances into the air, even if portions of the emissions later come to rest at a facility. In a win for manufacturers, the U.S. Court of Appeals for the Ninth Circuit reversed the trial court’s holding.

The NAM challenged the Environmental Protection Agency’s (EPA) 2013 final rule on commercial and industrial solid waste incineration (CISWI) units, which imposes stricter emissions limits on industrial, commercial and institutional boilers. The rule follows a 2011 rule that also imposed restrictions on materials used as fuels or ingredients in combustion units. The rules will impose additional costs and require sectors impacted by the rule to provide additional resources to remain compliant. The court consolidated this case into , a challenge to the 2011 rule on CISWI units, where the NAM argued that 1) the EPA failed to account for variability in waste materials when classifying best-performing units; 2) the EPA should consider emissions occurring during startups, shutdowns and malfunctions when determining whether emissions limits are achievable; and 3) the EPA could not impose recordkeeping requirements through the CISWI rule on operators that combust non-hazardous secondary materials that are not waste. Although the court rejected the NAM’s arguments, it ordered the agency to provide further justification for some of its conclusions.

The NAM filed an amicus brief urging the U.S. Supreme Court to support manufacturers’ rights to respond to jurisdictional decisions that impose additional costs and reduce the feasibility of constructing infrastructure. Under the Clean Water Act (CWA), a manufacturer must obtain a permit from the U.S. Army Corps of Engineers before discharging any dredged or fill material into waters of the United States that are subject to federal regulatory jurisdiction; however, the Corps has broadly construed the CWA to prohibit any productive use, improvement, alteration or repair of property without first obtaining a permit. This case provided the opportunity for manufacturers to request judicial review of Army Corps or Environmental Protection Agency decisions that may exceed those agencies' jurisdiction. The NAM’s brief argued that the regulated community must be afforded an early opportunity to respond to overly aggressive jurisdictional determinations and requested that the court resolve uncertainty over the scope of the CWA. In a win for manufacturers, the Court agreed with the NAM.

The NAM challenged the Environmental Protection Agency’s (EPA), Boiler Maximum Achievable Control Technology (MACT) standard used to regulate emissions of hazardous air pollutants generated by boilers. The challenge came after EPA issued the final MCAT rule; however, the EPA did not have enough data to properly calculate an emissions standard based on the statutory requirement. This decision will impose enormous costs on key industrial sectors. The NAM argued that the EPA exceeded its authority in imposing an energy assessment requirement on portions of the facility that are not part of the defined source category (boilers and process heaters); 2) the emissions limitations are unlawful because they have not been achieved in practice; 3) the standards are not achievable because they were set without accounting for malfunctions; 4) EPA improperly established a numeric emission limitation for organic pollutants rather than a work practice as it has done in a comparable rule; and 5) EPA failed to justify its reversal of previously established health-based limits for hydrogen chloride. In 2016, the court rejected all industry arguments, finding that the EPA's approach was reasonable.

The NAM filed an application for an immediate stay of the final rule for existing electric utility generating units pending litigation over the rule in the U.S. Court of Appeals for the District of Columbia Circuit. The Environmental Protection Agency’s (EPA) Clean Power Plan attempted to aggressively transform the domestic energy generation industry in violation of the Clean Air Act. If upheld, this rule would have imposed significant regulatory costs on manufacturers, thereby threatening global competitiveness. The NAM’s brief argued that the rule is far in excess of EPA’s statutory authority under the Clean Air Act and would cause irreparable harms to NAM members if a stay was not granted. In a win for manufacturers, the Supreme Court granted the stay.

Various states sued EPA over its tailoring rule, by which the agency rolled out enforcement of greenhouse gas regulations to the largest facilities first, followed by smaller ones later. States must comply with EPA's new regulations. The NAM and 14 other business associations in our coalition filed a motion to intervene in litigation filed by representatives of 8 states challenging EPA's authority. Their lawsuit sought judicial review of EPA's plan to retroactively limit its previous approval of pollution thresholds in State Implementation Plans (SIPs). The states are likely to argue that EPA violated the Clean Air Act by its reinterpretation of existing regulations, which would result in significant additional costs to manufacturers regulated under state programs.

The NAM's intervention in this case is designed to assist the court in understanding the interaction between EPA's requirements, state implementation programs, and emissions permit requirements affecting manufacturers.

The NAM and other organizations also filed a separate petition to review the EPA's tailoring rule. On March 10, 2015, the D.C. Circuit ruled that EPA's rules are vacated in part, consistent with the Supreme Court's ruling in Utility Air Regulatory Grop v. EPA.

This case involves the allocation of responsibility under the Clean Water Act's civil penalties provision between various parties related to the Deepwater Horizon accident in the Gulf of Mexico in 2010. Two defendant companies have asked the Supreme Court to review the Fifth Circuit's interpretation of the term "discharge" in the context of interconnected vessels and facilities through which the discharged oil passed. They argue that the Supreme Court has interpreted the word as "flowing or issuing out," but that the Fifth Circuit adopted a new interpretation of discharge as a "loss" or "absence" of controlled confinement. A petition for rehearing by the full court was denied by a vote of 7 to 6.

The NAM and other groups filed an amicus brief urging the Supreme Court to review this case. We argued that the appeals court ruling was confusing, overbroad, and internally inconsistent, and that ambiguous statutory terms should be interpreted leniently to defendants. Billions of dollars of potential penalties in this case depend on a proper interpretation of the statutory term.

The NAM brief was filed in both the Anadarko case and a similar appeal by BP Exploration and Production Inc. On 6/29/15, the Court declined to hear these appeals.

The NAM's successful challenge to EPA's authority to regulate virtually all manufacturers that emit greenhouse gases was sent back from the Supreme Court to the U.S. Court of Appeals for the D.C. Circuit to determine what to do with regulations that are still printed in the Code of Federal Regulations, but that exceed EPA's regulatory authority. All of the parties that challenged EPA's authority, including state governments, industry associations, and public interest groups, filed a motion with the court, as has EPA, recommending what to do next.

EPA's motion proposed that the court declare the "regulations under review are vacated to the extent they require a stationary source to obtain a PSD [or Title V] permit if greenhouse gases are the only pollutant [that would trigger construction or modification review." It also says the court should direct it to rescind or revise the regulations to reflect the Supreme Court's decision. The agency does not believe it should establish a de minimis threshold for greenhouse gas regulation, but instead wants to rely on the 75,000 tons per year threshold currently on the books.

Industry's motion, by contrast, argued that the Court invalidated EPA's regulations to the extent they "treat greenhouse gases as a pollutant for purposes of defining" PSD and Title V applicability. As a result, EPA must vacate those rules, namely the Tailoring Rule, the Timing/Triggering Rule (to the extent EPA relied on it), and other challenged rules it relied on. EPA's interpretation of its authority was neither compelled nor allowed by law, so in effect it must start over. It should also decide on a de minimis threshold for regulation.

Final briefs in response to each motion were filed November 21, 2014.

On April 10, 2015, the court issued an amended order that:

"(1) the regulations under review (including 40 C.F.R. §§ 51.166(b)(48)(v) and 52.21(b)(49)(v)) be vacated to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emissions increase from a modification; (2) the regulations under review be vacated to the extent they require a stationary source to obtain a title V permit solely because the source emits or has the potential to emit greenhouse gases above the applicable major source thresholds; and (3) the regulations under review (in particular 40 C.F.R. § 52.22 and 40 C.F.R. §§ 70.12, 71.13) be vacated to the extent they require EPA to consider further phasing-in the requirements identified in (1) and (2) above, at lower greenhouse gas emission thresholds."

The court also ordered EPA to rescind or revise the applicable rules "as expeditiously as practicable," and to "consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA . . . and if so, undertake to make such revisions."

In an insurance coverage case, a federal court asked the Texas Supreme Court to tell it whether Texas law compels a finding that BP is covered for damages arising from the Deepwater Horizon accident in the Gulf of Mexico. The case involves whether language in an umbrella insurance policy alone determines the extent of BP's coverage as an additional insured.

The NAM filed an amicus brief asking the court to apply traditional contract principles: (1) that the scope of insurance coverage should be determined by the contract and not from external documents unless they are clearly intended to be incorporated into the agreement, and (2) that ambiguous terms should be construed in favor of the insured. Courts should not create a subjective "sophisticated insured" exception to insurance law that has been recognized and applied for more than 125 years. Such an exception would make legal rules change depending on the identity of the party invoking them, would introduce the difficult question of determining who is a sophisticated insured, and would disincentivize insurance companies from making their policies as clear as possible.

The court held in an 8-1 decision that BP was not entitled to this coverage, relying on terms from the drilling contract that were not explicitly incorporated into the insurance policy.

The NAM filed an amicus brief on 4/22/15 supporting BP’s motion for rehearing by the Texas Supreme Court. The NAM’s brief supports BP’s argument that the court should revisit this issue as it has introduced tremendous uncertainty into state insurance law by departing from several long-held principles on insurance law. These principles include: 1) that external terms should only be incorporated into an insurance policy by explicit reference; 2) limitations on insurance coverage must be expressed in clear and unambiguous policy language; 3) the scope of additional insured coverage is determined by the policy and not the underlying contract; and 4) certificates of insurance are informational only and do not confer or abrogate rights.

BP dropped its motion for rehearing on May 27, 2015 after reaching a confidential settlement.

Neighbors of a power plant in Louisville sued the company for emitting dust and coal ash from its power generating and sludge processing plants. The suit raised claims under the federal Clean Air Act and Resource Conservation and Recovery Act (RCRA), as well as state-law claims of nuisance, trespass and negligence. The trial judge dismissed most of the claims, but allowed the common-law tort claims to proceed. That decision was appealed.

The NAM and other business groups filed an amicus brief supporting the utility, arguing that state common law air pollution claims are preempted by the Clean Air Act. Such claims directly conflict with the structure and purpose of the Act, and the Supreme Court has already held that similar claims under federal common law are displaced and unavailable. The purpose of the Clean Air Act is to ensure some level of uniformity, certainty and predictability in the application of air emissions standards throughout the United States. Piecemeal litigation that asks a judge to decide what is reasonable directly damages the interests of uniformity and predictability, subjecting companies in full compliance with their operating permits to significant and ongoing risk that they may be sued and held liable for their emissions. Moreover, nuisance law is notoriously vague and amorphous, leaving companies unable to predict whether their operations will be subject to potentially crushing damages liability.

This is another in a series of cases in which plaintiffs are trying to expand legal remedies beyond what Congress has legislated. Regulatory agencies like EPA take into account statutory requirements and consider the views of all affected parties when they impose regulations and permit requirements, and allowing individual judges or juries around the country to come up with their own views of what is a nuisance would seriously interfere with the ability of manufacturers and utilities to provide goods and electricity to their customers.

On November 2, 2015, the Sixth Circuit affirmed the district court’s order and held that such state common law air pollution claims are not preempted by the Clean Air Act. For more information, see the companion Sixth Circuit appeal in Merrick, et al. v. Diageo Americas Supply, Inc.

This case presents another opportunity for the courts to resolve whether public nuisance claims under state law are preempted by the Clean Air Act. There are serious conflicts between the federal courts of appeals and within state courts concerning this preemption issue.

The case arose when private property owners brought claims of nuisance, negligence and trespass based on ethanol emissions from Diageo's whiskey production facilities in Louisville, Kentucky. They allege that ethanol emitted from the facilities cause a fungus to germinate and grow on their property, and they seek damages and emissions controls that exceed those required under the company's Clean Air Act operating permits.

The issue is important because public nuisance litigation threatens one of the Clean Air Act's most important methods of pollution control -- permitting. Permits specify clear standards that guarantee certainty, predictability, and evenhandedness to the regulated community, and allowing public nuisance litigation threatens to substitute ad hoc decisions for considered regulatory policy, a result completely at odds with the goals and purposes of the Clean Air Act.

The NAM and two other business groups filed an amicus brief urging the Sixth Circuit to reject the claims, arguing that they directly conflict with and are preempted by the Clean Air Act. In addition, a provision in the Clean Air Act that allows states to adopt standards for air pollution control allows such controls only when they are established through statute or regulation, not claims under state common law. The goals and policies of the Clean Air Act were intended to establish and enforce uniform standards for air quality, developed by EPA through an extensive regulatory scheme that is fundamentally inconsistent with common law adjudication that would allow for the imposition of liability based on standards developed by a judge or jury and retroactively applied against a facility.

On November 2, 2015, the Sixth Circuit affirmed the district court’s order that such state common law air pollution claims are not preempted by the Clean Air Act. Though it acknowledged the suggestion that it is unduly burdensome for industries to be subject to both federal law and state common law, the court left that concern to Congress.

The NAM filed an amicus brief in the Supreme Court supporting a challenge to EPA’s decision not to consider costs in determining whether regulation of hazardous air pollutant (HAP) emissions from electric generating units was appropriate and necessary under Sec. 112 of the Clean Air Act. EPA’s regulation, known as the Utility MATS Rule, will cost more than $9.6 billion annually, according to EPA’s own analysis, and is one of the most expensive regulations ever for power plants. (The NAM’s estimate is $12 billion annually). These costs are passed on to manufacturers and other consumers of electricity, and could endanger the reliability of electricity.

We argued that the regulatory record compiled by EPA reflects little or no public health benefit from the reduction in HAP emissions. A federal appeals court ruled that EPA was allowed to refuse to consider the costs of the rule, despite a statutory requirement that the regulation be “appropriate.” Our brief argues that a rulemaking procedure that does not consider the rule’s substantial cost burden on the regulated community violates the express and intended meaning of this statute, particularly because energy regulation affects all sectors of society and the economy. “A determination of whether regulation is ‘appropriate’ inherently involves a balancing of costs and benefits,” we argued.

We also argued that the regulation is not necessary because other EPA regulations already impose restrictions on hazardous air pollutants, and EPA improperly tried to justify its new HAP regulation by touting the potential for reduction in emissions not regulated under the HAP rules, namely further reductions in particulate matter emissions that EPA would be unable to require directly.

On 6/29/15, by a vote of 5 to 4, the Court rejected EPA's failure to consider costs when determining whether the regulation was "appropriate and necessary." Even though EPA is entitled to considerable deference in its rulemaking powers under the Chevron case, the Court found that the agency's interpretation was not reasonable or even rational. According to the majority, "an agency may not 'entirely fai[l] to consider an important aspect of the problem' when deciding whether regulation is appropriate." The phrase is very broad, and a natural reading of it requires some attention to cost. Considering costs avoids the problem of spending too much on one problem and not having enough to spend on other -- perhaps more serious -- problems. The majority also rejected EPA's argument that it could consider costs when deciding how much to regulate power plants, rather than as a threshold issue in deciding whether to regulate them. The statute requires cost considerations at the first step. But it left it to EPA to decide how to account for cost in making its initial determination, without requiring "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." The Court did not address EPA's claim that the regulation provides ancillary benefits that make it cost-effective.

The NAM and 8 other business associations filed an amicus brief supporting Murray Energy's challenge to EPA's proposed rule to substantially regulate greenhouse gas emissions from existing power plants. According to the EPA, the rule's annual compliance costs will reach at least $7.3 billion by 2030, and manufacturers will see dramatic electricity cost increases and less reliable service as a result.

The NAM amicus brief argued that Section 111(d)(1) of the Clean Air Act prohibits EPA from setting performance standards for sources that are already regulated under Section 112. EPA's interpretation would create double regulation, making power plant operation more expensive and conflicting with the purpose of Section 111(d). The statutory language is not ambiguous, and EPA's interpretation should not be given deference by the courts.

On June 9, 2015, the Court dismissed the challenge because the EPA has not taken final agency action that would allow a court to review it. The criteria under the All Writs Act for issuing an order against EPA's plans are not met, and the fact that some companies may be incurring costs in anticipation of the final rule does not justify court intervention.

This is the appeal of an adverse ruling from the district court judge in our suit challenging the SEC's conflict minerals rule. Click here for details on that ruling.

Our appeal was expedited, and focused on largely the same issues that were before the trial judge. Review was de novo, which means that the appeals court looks at the case fresh, without any presumption that the trial court's ruling is binding on them.

The NAM, joined by the Business Roundtable and the U.S. Chamber of Commerce, argued that the SEC incorrectly interpreted the statute, which requires reporting of certain minerals that "did originate" in and around the Democratic Republic of the Congo (DRC), to cover minerals that "may have originated" there. It also failed to recognize and use its power to establish a reasonable de minimis exception for small amounts of minerals, which could provide substantial relief from the burdensome requirements of the rule for thousands of manufacturers. We also raised an important First Amendment objection to the requirement that companies make misleading and stigmatizing public statements unfairly linking their products to terrible human rights abuses.

We filed our main brief on the merits on Sept. 11, and our reply Nov. 13, 2013. Oral argument was held on Jan. 7, 2014, during which counsel for the SEC faced difficult questioning about the SEC's rule and the First Amendment objections.

On April 14, the court deferred to the SEC on its interpretations of the substantive provisions included in the rule, but overturned the requirement that companies disclose that their products are not "DRC conflict free." The First Amendment prohibits the requirement that companies report to the SEC and post on company web sites the fact that certain manufactured products are not “conflict free”. This constitutes government-compelled speech. It is now up to the SEC to determine what reporting requirement to impose and what to do while it is making that decision, since the first reports under the regulation must be filed by June 2, 2014. If it tries to formulate alternative reporting requirements, it may need to revist the whole public reporting aspect of the rule through a new round of notice-and-comment rulemaking.

On April 29, the NAM, Chamber and Roundtable filed a motion with the SEC to stay the rule or at least filing deadline. The whole point of the rule and the statute was to try to effect social change by shaming companies who cannot label their products as "DRC conflict free," and since the shaming mechanism has been struck down, the remainder of the rule has questionable benefits. Moreover, there are a host of questions without easy answers that must be considered before imposing enormous costs on industry. The SEC will have to determine what type of disclosure should replace the unconstitutional requirement, whether that would require changes to other provisions of the rule, re-analyze the costs and benefits of the rule, and provide for notice-and-comment rulemaking. Finally, requiring some type of truncated report is an approach that will not serve the law's intended purpose and will worsen the massive uncertainty and confusion among those who are subject to the rule.

The same day, Keith Higgins, director of the SEC's Division of Corporation Finance, issued a statement saying that companies will still need to file their first reports by the due date and address those portion of the rule that the court upheld. He added that "No company is required to describe its products as 'DRC conflict free,' having 'not been found to be ‘DRC conflict free,’' or 'DRC conflict undeterminable.' If a company voluntarily elects to describe any of its products as 'DRC conflict free' in its Conflict Minerals Report, it would be permitted to do so provided it had obtained an independent private sector audit (IPSA) as required by the rule. Pending further action, an IPSA will not be required unless a company voluntarily elects to describe a product as 'DRC conflict free' in its Conflict Minerals Report.

We also released a statement April 30 saying in part that "Congress and the SEC need time to evaluate how to amend the statute and/or the rule in light of the court's decision. Given the significant issues involved, we believe that it is in everyone's interest to stay the rule until these issues can be fully analyzed and addressed. Accordingly, we will ask the DC Circuit to grant a full stay of the rule until the implications of the decision are clear to all parties."

On May 2, 2014, the SEC issued a partial stay of the portion of the rule that requires issuers to disclose that any of their products have "not been found to be “DRC conflict free.'" It denied our request that the entire rule be stayed. The Commission did not, however, stay the effective date (June 2) for complying with all the other requirements of the rule. Companies are struggling to determine the meaning of the SEC’s action and what to do. The D.C. Circuit’s decision in our challenge to the rule means that the case will be sent back to the trial judge to determine whether to vacate the rule in its entirety or provide some other remedy.

Because this litigation was ongoing and the SEC had not voluntarily stayed the implementation of the rule, the NAM and other business organizations went back to the D.C. Circuit on May 5 and filed an emergency motion for stay of the rule in its entirety until the trial court has addressed the unresolved questions.

We argued that the rule’s compelled confessions, which have been declared unconstitutional, constitute the entire basis for the rule, imposing astronomical costs on affected companies. It makes no sense to enforce a rule that no longer achieves its goals and that likely will be vacated, and a stay would avoid “forcing companies to implement interim procedures for filing truncated reports under unilateral staff guidance that is subject to change at any time.”

On May 14, the court denied our motion for a stay. Companies must now comply with the modified filing requirements by June 2.

On May 29, both the SEC and Amnesty International asked the D.C. Circuit to hold any further appeals until after it ruled in the American Meat Institute v. USDA case, which it did on July 29. On Aug. 15, Amnesty International supplemented its brief in support of a petition for rehearing en banc, and on Aug. 28, the Court ordered us to file a response. We filed it on Sept. 12, arguing that the standards for rehearing this case have not been met, and that the court's decision in the American Meat Institute case was limited to "purely factual and uncontroversial" disclosures, not disclosures like the ones required by the conflict minerals regulation. The disclosures in this case, according to the judges who ruled on them, require an issuer "to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups," or even if the issuer is merely unable to determine their origin.

On Nov. 18, the 3-judge panel agreed to rehear this case, and asked for further briefing on the impact of the decision in American Meat Institute v. USDA, as well as the meaning of "purely factual and uncontroversial information" and whether that determination is a question of fact for the court. The SEC filed its brief on December 8, and ours was filed December 29. Oral arguments were not held.

The 3-judge panel finally ruled on Aug. 18, 2015, that the compelled disclosures are unconstitutional. It ruled that the looser standard of review under the Zauderer case does not apply here, because that case involved only voluntary commercial advertising, not government-compelled statements about products. But even if this looser standard of review applied, the government must have a sufficient interest in mandating disclosures, and the rule must be effective in achieving its objectives. Instead, whether the law will decrease the revenue of armed groups in the DRC and diminish the humanitarian crisis there "is entirely unproven and rests on pure speculation." No hearings were held on the impact of the law prior to enactment, and later hearings were inconclusive. This is an insufficient justification to compel speech under the First Amendment.

The majority also analyzed the part of the ruling in the American Meat Institute case and found that determining whether compelled speech is about "purely factual and uncontroversial information" is a puzzling exercise, but that the SEC's requirement to label products as "conflict free" or not is hardly factual and non-ideological. Instead, it ethically taints products and stigmatizes companies in violation of the First Amendment. The SEC and Amnesty International petitioned for rehearing before the full D.C. Circuit court, but that request was denied, and the case was not appealed to the Supreme Court.

The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on non-hazardous secondary materials (NHSM) issued by the EPA on February 7, 2013, entitled “Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste, Final Rule”. The rule was written to identify whether NHSMs are solid waste under the Resource Conservation and Recovery Act when used as fuels or ingredients in combustion units. Further details about the legal claims in this litigation will be filed with the court shortly.

This case was consolidated on June 7, 2013. For more information click here.

This case involves the statutory obligations of the EPA to set maximum achievable control technology (MACT) standards for emissions under Clean Air Act Sec. 112(d)(6), specifically for chromium electroplating and anodizing operations. EPA is in the early stages of implementing that section, which applies when EPA reviews standards every 8 years. Because this review process applies to many other substances regulated by EPA, the decision in this case will extend far beyond chromium use.

At issue is what the statute requires of EPA when determining whether to tighten an existing standard. The NAM filed an amicus brief arguing that the statute specifically requires EPA to revise a standard, when conducting a technology review, only when "necessary (taking into account developments in practices, processes, and control technologies)." In this case, EPA's approach did not square with the plain statutory requirements, because it identified no "development" in emissions control measures that necessitates the new, more stringent standards it adopted.

We also oppose an effort by environmental groups to have EPA recalculate existing standards using procedures in Sec. 112(d)(2) and (3) for initial MACT standard-setting. Those procedures for new standards are not constrained in the same way that 8-year reviews are. As a result, EPA will lower emissions limits because companies complying with new standards try to build in a compliance margin when they buy new equipment, and that commendable over-performance raises the bar and leads EPA to lower the limits when the standard is reviewed. EPA's longstanding position is that it is not required to re-set the existing MACT standards each time it conducts a Sec. 112(d)(6) review, and that it is not required to use procedures under Sec. 112(d)(2) and (3) for periodic reviews, yet it did so in this case.

On July 21, 2015, a 3-judge panel rejected both industry and environmental group challenges to the review. It declined to require EPA to determine a new MACT floor each time it reviews a MACT rule, as environmental groups had wanted. But it also rejected industry arguments challenging the extent of technological developments that have occurred since the first rule was issued. It found that developments include improvements in performance of some technologies, which EPA found.

On June 16, 2011, the NAM filed a petition for review of the EPA’s Non-Hazardous Secondary Materials (NHSM) rule under the suite of Boiler MACT rules. The NHSM rule will classify as solid waste certain “secondary” materials that are currently used as a source of energy, such as coal ash or biomass residues from lumber. Solid waste must be burned in boilers regulated under more onerous rules than apply to fuels. The NAM is concerned with several aspects of the rule, including its effect on the use of non-hazardous materials, its presumption that all non-hazardous secondary materials are solid waste, and other provisions.

A list of legal issues in the case was filed, including challenging EPA's presumption that all non-hazardous secondary materials are solid waste, and its definition of "contaminants," "traditional fuels," and "contained gaseous material." Also at issue, among other things, is whether EPA violated the Regulatory Flexibility Act by failing to consider the economic impacts of the rule on small businesses.

In 2013, National Ass'n of Clean Water Agencies v. EPA was consolidated with the NAM suit into Solvay USA Inc. v. EPA. Our main brief on the merits, filed 4/28/2014, raised 4 key challenges to EPA's rule: (1) that EPA improperly decided that transferring alternative fuels to third parties for combustion is a discard and therefore such fuels are solid wastes, (2) that EPA improperly classified as solid waste alternative fuels such as those made from construction and demolition wood, railroad ties, and other treated woods that have heating value, are managed as valuable fuel, and are processed to create new fuel products, (3) that EPA improperly classified as solid waste alternative fuels such as paper recycling residuals, even though the record demonstrates no discard has occurred and the combustion is an integral part of an industrial process or functionally equivalent to a traditional fuel, and (4) that EPA improperly classified as solid waste sewage sludge when combusted even though the Resource Conservation and Recovery Act (RCRA) prohibits such a classification.

The practical effect of EPA's rule is that alternative fuel that could have been productively combusted will be managed as a waste and can only be combusted in a solid waste incinerator under much more expensive rules, leading to an enormous increase in landfill disposal, which has its own set of environmental harms.

Our brief as intervenors was filed Aug. 29, 2014, and emphasized that EPA could find under RCRA that discarded material could be recovered and processed into a non-waste fuel product, and that it could properly classify as non-wastes scrap tires, used oil, pulp and paper residuals, construction and demolition debris and other traditional fuels.

On June 3, 2015, the Court of Appeals denied Solvay’s petition for review as well as those of the environmental groups that challenged the rule. The court reasoned that the argument regarding sewage sludge is foreclosed by RCRA’s plain language and that EPA’s distinction between material burned by the generator and material transferred to a third party is consistent with RCRA and reasonable. It allowed EPA to place the burden on regulated entities to show that its material should not be regulated, because Congress wanted EPA "to err on the side of caution."

The court also rejected an environmental challenge to EPA's treating materials that are indistinguishable from virgin materials as non-waste fuel.

The NAM and 9 other groups filed an amicus brief in a case brought by a coalition of 12 states seeking to hold unlawful a 2011 settlement agreement between the EPA and some environmental groups which committed the agency to propose rules to regulate greenhouse gases from power plants. EPA proposed the rules in 2014, and this challenge began in July. Although the agency has not finalized its rules, this suit challenges the underlying settlement agreement.

The EPA rules impose new compliance costs on utilities that already must bear $9.6 billion per year in costs under the 2012 rule on hazardous air pollutants. Manufacturers of energy inputs will see sales decline precipitously as power plants cut costs or shut down. Manufacturers of all kinds, as purchasers of electricity, will see dramatic cost increases and electric service will become less reliable.

In our amicus brief, we argued that EPA may not regulate power plants under Section 111(d) of the Clean Air Act because power plants are already regulated under Section 112, and the law specifically prohibits dual regulation under both sections. EPA tried to manufacture ambiguity by relying on an acknowledged congressional drafting error. EPA should not be entitled to judicial deference when the statutory language itself is clear.

A similar case, Murray Energy Corp. v. EPA, is also pending in the D.C. Circuit, involving the same questions but challenging the proposed rules directly. We filed an amicus brief in that case on December 22. Oral arguments in both cases were held on April 16, 2015.

On June 9, 2015, the D.C. Circuit rejected West Virginia’s argument concerning the underlying settlement agreement and ruled for the EPA. The court held that West Virginia lacked standing to sue because the settlement agreement only set a timeline for the EPA to decide whether or not to issue a final rule and therefore did not create an injury in fact. Additionally, a suit to challenge such a settlement agreement must be filed within 60 days of the agreement’s publication in the Federal Register rather than more than two years later, as was the case here.

On April 18, 2013, the NAM and 23 other business organizations appealed to the Supreme Court to review an adverse decision on greenhouse gas regulation from the D.C. Circuit. We asked the Court to review EPA's first-ever regulations of greenhouse gases emitted by stationary sources, such as power plants and factories. The lower court rejected lawsuits from hundreds of organizations who question EPA's authority to issue the rules under the Clean Air Act, as well as the procedures it used in doing so. Our petition was granted and consolidated into Utility Air Regulatory Group v. EPA. On June 23, 2014, the Supreme Court agreed with the NAM and ruled that EPA's regulation went too far. Click here for a more detailed summary of this case.

This is an appeal of a decision dismissing claims by an environmental group that would force the government to impose further greenhouse gas emissions reduction policies under a "public trust" theory. The NAM intervened in the case in the trial court and helped obtain the favorable ruling there.

For a full summary of our arguments in the district court, click here.

In our appeals court brief, joined by various trucking and construction companies and associations, we argue that the public trust doctrine is a state law doctrine and does not implicate a federal question subject to jurisdiction in the federal courts. The case also presents a political question that is not for the courts to decide, putting the courts in the position of adopting air emission standards of general applicability and monitoring compliance. No court has ever used the public trust doctrine to compel a regulatory action by the federal government, much less a sweeping new regulatory agenda of the type sought here. In addition, the parties bringing suit do not have standing, because their alleged injuries are not imminent and particularized, nor are they fairly traceable to the defendants or likely to be lessened by any court order.

The court decided not to hear oral arguments in the case, and on June 5, 2014, affirmed the district court's dismissal of the claims. It found that the plaintiffs did not present a federal question, and that the court therefore did not have jurisdiction to hear the case. There was no federal question because the claims were based on the legal theory of public trust, which is entirely a state law issue.

The NAM intervened in this case to help block this attempt to use the courts to do an end run around the legislative and regulatory processes that govern regulation of emissions from manufacturing plants. This result is an important development in reining in these kinds of aggressive legal theories and litigation tactics.

The plaintiffs appealed to the Supreme Court, which declined to hear the case on 12/8/2014.

The NAM and other organizations filed another petition to review an EPA action that is part of its suite of regulations of greenhouse gases from stationary sources. One of our initial suits in this series challenged the EPA's effort to regulate light-duty vehicles, because the agency used that rule as a predicate for further regulation of manufacturing facilities. We challenged this latest rule, published Oct. 15, 2012, as well. The case was consolidated with Plant Oil Powered Diesel Fuel Systems, Inc. v. EPA (No. 12-1428, D.C. Cir.), but that case was voluntarily dismissed, and our challenge was severed and held in abeyance pending a decision from the Supreme Court in UARG v. EPA. After that ruling, we stipulated a dismissal of this case.

Landowners near a county landfill in South Carolina sued the landfill claiming that odors from the area caused them damage. The landfill argued that the law suit should be dismissed, because emissions from waste disposal facilities are regulated by Clean Air Act permitting requirements.

The NAM and the National Waste & Recycling Association filed an amicus brief supporting this argument. Congress adopted a comprehensive regulatory process that allows federal and state regulators to set emissions requirements for major stationary sources of pollutants, and the facility at issue in this case is so regulated. Court orders that set different emissions requirements would conflict with the Clean Air Act's system, but would also dramatically alter the cooperative federal-state framework established by Congress to address air quality issues. Different court rulings around the country would create a patchwork of standards under the common law of each state, and regulated entities would face a daunting challenge of predicting what standards their facilities must meet. Instead, we argued, the court should find that this kind of state nuisance claim is preempted by the Clean Air Act.

This is another example of a law suit that attempts to use state common law claims to impose more and different air emission requirements on manufacturers or other facility operators already subject to state and federal regulation under the Clean Air Act. The NAM filed a brief in a similar case in 2013 involving emissions from a plant in Iowa.

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The NAM and 17 other business associations moved to intervene in a lawsuit brought by the Center for Biological Diversity (CBD) against the EPA over the agency's interpretation of when greenhouse gases become "subject to regulation" (STR) under the Clean Air Act. CBD is expected to argue that greenhouse gases were already subject to regulation before EPA issued the "Johnson memo" in 2008 and a subsequent STR rule in April, 2010. If such a claim is accepted by a federal court, thousands of members of the business associations could be forced to obtain permits for new or existing facilities and to install costly control technology to try to reduce greenhouse gas emissions.

On July 18, 2014, after the Supreme Court's decision in Utility Air Regulatory Group v. EPA, this case was voluntarily dismissed.

This case involves the deadline for filing damage suits under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act. The Supreme Court agreed to review a decision from the Fourth Circuit involving a suit for alleged contamination of the ground and water near an old North Carolina manufacturing plant site once owned by CTS Corporation. The site is subject to clean-up obligations under CERCLA, but this case involves a private suit alleging nuisance under state law. CTS argued that the nuisance claim was barred by North Carolina’s 10-year statute of repose.

CERCLA provides liberal deadlines for filing suit that supersede state statutes of limitations, but says nothing about statutes of repose.

The NAM filed an amicus brief focusing on the history of statutes of repose and the beneficial purposes they serve—particularly in the efforts of states to create, enhance, and protect economic opportunities for their citizens through job growth. We stressed that states across the country have enacted statutes of repose as part of broader efforts to strengthen their economies—an effort that in the current economic environment is all the more important. These statutes simply put an end to perpetual liability that can remain unknown for years and years, after witnesses are gone and memories fade. They provide certainty and finality in commercial transactions, promote judicial economy, and help keep insurance rates down.

On 6/9/2014, the Court ruled 7 to 2 that CERCLA does not preempt state statutes of repose. Such statutes differ from statutes of limitations in that they are designed to put an absolute time limit on a defendant's liability, while statutes of limitations are designed to require plaintiffs to file suit promptly when their claims accrue. Courts may grant exceptions when plaintiffs miss statute of limitations deadlines for various reasons, but not for statutes of repose. Because Congress knew of the differences and did not include statutes of repose in the law at issue, it did not intend to preempt them.

The decision limits long-term liability under CERCLA for pollution that occurred many years ago.

Eight residents of Muscatine, Iowa, sued a local corn milling plant alleging trespass, nuisance and negligence from pollutants and odors from the plant. The trial court dismissed the claims as being preempted by the Clean Air Act (CAA), Iowa law, and the political question doctrine. That decision was appealed to the Iowa Supreme Court.

The NAM, along with 5 other manufacturing associations, filed an amicus brief supporting the trial court's decision on preemption and political question. Manufacturers are already subject to a complex system of state and federal regulations, and adding common-law tort liability on top of that will further undermine the ability to create jobs and compete. We argued that courts are not equipped to properly handle cases like this, because they require clear and manageable standards for imposing liability, and such standards involve policy judgments that can only properly be developed by legislative and regulatory bodies with the investigative resources and technical and scientific expertise necessary. In addition, the executive and legislative branches of government are authorized to set and adjust standards and rules to guide the regulated community, and they are much better able to consider the views of many more affected parties, including a variety of scientific and economic experts, to revisit their policy choices on a regular basis, and to develop a consistent policy for everyone, not a piece-meal policy that depends on the court or state in which the case occurs.

On June 13, 2014, the Iowa Supreme Court reversed the trial court decision and found that the CAA does not either expressly or impliedly preempt state emissions laws nor preclude a right of action brought under those laws. The Court also stated that several clauses in the CAA reserve for private citizens the power to bring public nuisance claims. Unless a state law or common law right of action is expressly preempted by federal statute, courts are reluctant to apply the preemption doctrine to state causes of action. The Court also found that the Iowa environmental statute did not preempt the plaintiffs’ claims because it too reserved the right to bring a public nuisance claim. Rejecting the political question argument, the court found that no constitutional controversy existed, tort claims are typically not precluded under the political question doctrine, and resolution of the controversy did not require a policy decision by another branch of government.

Claims based on nuisance theories of liability continue to be somewhat of a wild card for the regulation of plant emissions. Manufacturers continue to seek a rational regulatory system where the rules are clear and the potential liabilities are predictable and manageable.

This is a Clean Air Act preemption case. Some private property owners sued a power company under common law tort claiming damages for nuisance, trespass, negligence and strict liability arising from emissions and particulates from the operation of a coal-fired power plant in Allegheny County, Pennsylvania. The plant had permits from EPA for the emissions, and the lawsuit did not allege any violations of the Clean Air Act. The trial court threw the case out, finding it preempted by the Clean Air Act, but the Third Circuit Court of Appeals reversed, holding that a provision of the Act saves this kind of state lawsuit. The company sought Supreme Court review.

The NAM led a group of 11 other industry associations in filing an amicus brief supporting review. We argued that state common law remedies such as those sought here are irreconcilably inconsistent with the comprehensive system of air pollution control provided by the Clean Air Act. Permits, which are subject to public notice and comment, specify clear emission and operating standards that guarantee certainty, predictability, and evenhandedness to the regulated community. They provide an informed assessment of competing interests. By contrast, common law suits view the issues from a narrower perspective, using vague standards of liability, uneven application between states or even within states, with no guarantee of consistent results even between similar facilities.

Companies must be able to rely on permits for stable business operations, and these kinds of suits are a growing concern. Their effect is to add additional liability for activities that fully comply with federal permit obligations, raising the cost of doing business and threatening jobs and competitiveness.

The Supreme Court denied our appeal on June 2, 2014.

The Iowa Supreme Court ruled that a group of Iowa residents could sue a local corn milling plant for trespass, nuisance and negligence from pollutants and odors emanating from the plant, in spite of the fact that the emissions are regulated by the EPA and the company is in full compliance with its permits. That decision was appealed to the U.S. Supreme Court. This case represents a serious emerging problem for manufacturers. The appeal in a similar case was declined by the Court earlier this year.

Our brief, joined by 6 other national associations, urged the Supreme Court to hear this appeal. We argued that this case presents an ideal opportunity to resolve whether public nuisance claims under state law are preempted by the Clean Air Act. There are serious conflicts between the federal courts of appeals and within state courts concerning this preemption issue. The issue is important because public nuisance litigation threatens one of the Clean Air Act's most important methods of pollution control -- permitting. Permits specify clear standards that guarantee certainty, predictability, and evenhandedness to the regulated community, and allowing public nuisance litigation threatens to substitute ad hoc decisions for considered regulatory policy, a result completely at odds with the goals and purposes of the Clean Air Act.

On December 1, 2014, the Court declined to review this appeal.

The NAM and a group of 18 other national business organizations filed an amicus brief urging the Supreme Court to review a ruling that would give EPA the power to revoke a valid discharge permit issued under the Clean Water Act. The ruling, reversing a trial judge's decision that struck down EPA's attempt to interfere with valid permits, prompted widespread concern in the business community that EPA was arrogating to itself the power to upset long-settled reliance on thousands of permits issued by the U.S. Army Corps of Engineers.

The NAM hoped to convince the Supreme Court of the importance of this case. Our brief focused on the impact of the decision on investment expectations and infrastructure projects. About 60,000 discharge permits are issued every year, representing $220 billion of investment in the U.S. economy, and a 2% risk that EPA could revoke a permit decreases the benefit-cost ratio of a project by 30%. We highlighted a study by Professor David Sunding that even small changes in the possibility of such EPA action "can lead to dramatic redutions in private investment." EPA's move also threatens public sector projects for water, transportation, energy and public infrastructure.

The issue is also critical to state governments, with 27 states filing their own amicus brief supporting Supreme Court review of the case.

Here are links for our summaries of action in this case in the trial court and the appeals court.

On March 25, 2014, the Court declined to hear this appeal.

On March 15, 2013, the NAM filed a petition for the U.S. Court of Appeals to review the EPA's latest regulation of particulate matter. The regulation, published on Jan. 15, lowered the primary annual National Ambient Air Quality Standard for particulate matter from 15 to 12 micrograms per cubic meter. The NAM had urged EPA to retain the existing standard, but the agency opted to move forward with a more aggressive and damaging regulation.

NAM's President and CEO Jay Timmons said that the "new standard will crush manufacturers' plans for growth by restricting counties' ability to issue permits for new facilities, which makes them less attractive for new business. Essentially, existing facilities will have to be shuttered for new facilities to be built in these areas. This is not a conducive way to create jobs."

Our opening brief, filed 8/19/13, focused on whether EPA prejudged the need for the rule and the range of outcomes from the rulemaking process, whether it ignored a substantial body of contrary scientific evidence that does not support lowering the standard, whether its decision to require monitoring devices along roadways was unlawful because it will record maximum rather than ambient particulate matter concentrations, and whether the rule is invalid because EPA failed to provide implementation rules needed to address the legal consequences that flow from it.

The brief recounts the history of EPA's regulation of particulate matter. It notes that promulgation of the rule triggered immediate implementation obligations and started the clock on numerous others, yet many key implementation issues are unresolved. First, EPA has not approved a computer model to demonstrate compliance with the standard, which is typically how companies demonstrate compliance. Second, there are technical problems with the two methods approved by EPA for testing particulate matter emissions that have led EPA to recognize their limitations, indicating that reliable test methods are several years away. Third, EPA has not provided full guidance to the states about how to designate the boundaries of nonattainment areas, which could lead to improper designations and further burdens on manufacturers. Other issues are also highlighted.

On May 9, 2014, the Circuit Court denied NAM’s petitions. On each issue, the court deferred to EPA’s process and decisions. Although we challenged EPA’s lowering of the threshold for particulate matter, the court decided that EPA provided reasonable scientific explanations to justify making the standards more stringent. We also challenged EPA’s elimination of the “spatial averaging” test to determine particulate matter standards. Spatial averaging entails gathering data from several sites within a specified area and then averaging the results to determine the level of emissions in that area. EPA reasoned that spatial averaging would cause certain specific areas within a larger area to be out of compliance. Lastly, the court determined that EPA has the authority to protect air quality, and therefore it may place monitors in all areas, including along heavily traveled metropolitan roads, to accurately determine air quality.

In sum, this decision shows that courts continue to be reluctant to second-guess EPA regulations. Lowering the particulate matter levels will increase costs and harm competitiveness. The court’s unilateral deference to EPA’s justifications for lowering the levels underscores the importance of participation in the rulemaking process to combat future EPA regulations.

There’s a law that prevents agencies from charging ahead with regulatory changes without seeking input from the public and the regulated community. It’s called the Administrative Procedure Act (APA), and it was designed to require agencies that want to make significant changes to their regulations to publish the proposed changes and answer criticisms on the record.

In 2009, the Environmental Protection Agency announced -- through a series of memoranda and letters -- a new system of review for certain Clean Water Act permits. These permits, called Section 404 permits, are needed by anyone that wants to build or modify a facility or undertake some other construction project that might have an effect on waters subject to federal jurisdiction. EPA later issued lengthy guidance making substantive changes to the requirements for permits for surface coal mining, also without going through notice-and-comment rulemaking.

The National Mining Association sued, and a federal district judge ruled that EPA had overstepped its authority and violated the APA. That ruling has been appealed to the D.C. Circuit, and the NAM and other business organizations filed an amicus brief supporting the trial judge’s decision. The brief described numerous instances where EPA and other regulatory agencies have issued regulatory requirements -- posing as guidance – that should be adopted by notice-and-comment procedures.

On July 11, 2014, the D.C. Circuit reversed, finding that the "Enhanced Coordination Process" and Final Guidance were procedural, not legislative rules, and therefore not subject to the APA. It also ruled that a court challenge was premature because the Final Guidance was not actually final agency action subject to litigation, because it did not subject regulated parties or state enforcement agencies to any requirements or liabilities. The Guidance can be legally ignored. If it is actually used to grant or deny a permit in the future, a law suit might then be appropriate.

The upshot of this ruling is that EPA can create guidance documents that regulated parties can legally ignore, but they do so at the risk of having to litigate over EPA's use of such guidance documents after a permit is denied. Changing regulatory requirements with guidance documents casts American businesses adrift in uncharted territory in terms of regulatory risk and stymies investment and economic growth. Agencies that fail to use proper rulemaking procedures make decisions without the insight, data and information of the regulated public, including the practical implications of alternative policy choices.

Several environmental groups sued EPA over its emission standards for hazardous air pollutants from cement plants. They argued that amendments to the standards weaken and delay compliance with an earlier rule, and that the agency must not allow an affirmative defense for manufacturers when malfunctions of industrial equipment occur. The NAM is part of the SSM Coalition, which filed an amicus brief supporting the affirmative defense. The environmental groups wanted a standard that regulated sources, including the best-performing sources, will be unable to meet at times despite their proper design, operation, and maintenance. As a result, manufacturers will face civil penalties for events beyond their control.

EPA took the position that malfunctions must be accounted for in standards which require maximum achievable control technology (MACT). To be achievable, MACT standards must be capable of being met on a regular basis, including under most adverse circumstances which can reasonably be expected to recur, including periods of startup, shutdown, and malfunction. EPA may set different requirements during malfunction events than apply to normal operations of plant equipment.

Our brief argued that an affirmative defense to civil penalties that might arise from a malfunction is required by the Clean Air Act and was properly promulgated by EPA. Without the defense, companies would be subjected to citizen suits, as well as administrative penalties, for events beyond their control.

We also argued that EPA has the authority to adjust the compliance deadline when it modifies a MACT standard. Not allowing this authority would be hugely unfair to regulated sources and would ignore the reality that it can take up to three years or more to design, acquire, install and start up pollution control equipment or modified processes.

On April 18, 2014, the court unanimously ruled that EPA properly adopted the emissions-related provisions in the rule, but that it did not have the statutory authority to create an affirmative defense in civil suits against cement manufacturers where an unavoidable malfunction results in impermissible levels of emissions. It found that EPA reasonably read the statute to allow an increase in the emissions limits for particulate matter from cement-making kilns. It also found that EPA reasonably considered costs to industry with a comparative analysis of cost-effectiveness, rather than, as the environmental groups wanted, consider only whether a standard would be "too expensive for industry to achieve", that is, one that would essentially bankrupt the industry.

The court rejected environmental arguments that the compliance date for emissions of mercury, hydrochloric acid and hydrocarbons should be 2013. Because the standard for particulate matter changed in the new regulation, the court found that it would be irrational and even absurd to have different compliance dates for the different pollutants because of the technology involved. The new compliance date is September 2015.

Finally, it agreed with the environmental groups that EPA did not have the authority to establish an affirmative defense for companies whose emissions exceed the regulatory limits because of unavoidable malfunctions. Instead, private civil suits may be filed by those affected by the emissions, and it is up to the courts to decide whether to award damages. During court proceedings, EPA may seek to intervene, or file an amicus brief, stating its views about whether a company should be liable for such emissions. It is up to the courts to determine the scope of remedies available to plaintiffs, taking into consideration the company's compliance history and good faith efforts to comply, the duration of the violation, and other factors.

The NAM and other groups asked the Supreme Court to review a lower court decision that allows the EPA to take over 14 state enforcement plans under the Clean Air Act with respect to regional haze, and impose Federal Implementation Plans (FIPs). Oklahoma and North Dakota objected to this EPA action, saying that the agency overstepped its statutory authority and the result will be billions of dollars in power plant upgrades that will needlessly boost electric rates by as much as 20 percent.

Our amicus brief supports review, focusing on the fact that the Clean Air Act limits EPA's authority with respect to state implementation plans, instead giving the states primary responsibility for making air quality decisions and limiting EPA's role to the secondary function of determining whether those state plans are "based on a reasoned analysis." This is particularly important regarding state regional haze decisions, which involve aesthetic concerns such as visibility in parks. EPA wanted to impose a control technology that is too costly, and conducted a visibility analysis differently. However, Congress gave the states significant latitute by allowing them to choose the mix of sources that must install controls to attain the national standards.

This litigation reflects a growing pattern of disregard by EPA for the statutory limits on its authority, undermining the balance in the Clean Air Act between federal and state enforcement. Allowing this will only make matters worse -- empowering EPA to take unilateral action without engaging with states to help craft workable standards.

On May 27, 2014, the Court declined to hear this appeal.

In the Deseret Power decision in 2008, the EPA Environmental Appeals Board rejected the Sierra Club's contention that preconstruction permits for new power plants must include "best available control technology" (BACT) for carbon dioxide, but sent the case back to the EPA to reconsider whether to impose the requirement under its discretionary authority, and to develop an adequate record for its decision. It encouraged the EPA to consider whether the issue in this case should be resolved "in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

On Sept. 14, 2010, the court ordered the case held in abeyance pending the outcome of other greenhouse gas cases. Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18, 2008, that concluded that PSD permits (for the Prevention of Significant Deterioration of air quality) do not need to include BACT limits for greenhouse gases. The Sierra Club challenged that guidance, while the NAM and other business organizations supported it.

Our motion to intervene, filed 2/13/09, outlined why this case will have a substantial impact on many manufacturers, and why the EPA, which represents the general public interest, will not adequately represent the interests of the business community.

On Feb. 17, 2009, EPA Administrator Lisa Jackson granted a Sierra Club petition for reconsideration of the Johnson memo, and permitted public comment on the matter. The D.C. Circuit stayed the litigation.

On April 2, 2010, EPA completed its reconsideration of the Johnson memo and published a new "Subject to Regulation" notice that made January 2, 2011 the date on which greenhouse gas emissions were regulated. On June 9, EPA asked the court to hold the case in abeyance while other litigation over its GHG regulation was resolved. The NAM opposed this motion, saying that the issues in this case are being addressed in other greenhouse gas cases, and the environmental groups here should not be allowed to have a second chance to litigate should they lose in those other cases. We also opposed an effort to allow the Center for Biological Diversity to switch its challenge from those cases into this one, as that could create competing panels of judges reviewing the same issues. Ultimately, the case was held in abeyance and finally dismissed in 2014 after the Supreme Court ruled in Utility Air Regulatory Group v. EPA, partially upholding EPA regulation of greenhouse gases, but limited its scope under the PSD program.

On April 18, 2013, the NAM and 23 other business organizations appealed to the Supreme Court to review an adverse decision on greenhouse gas regulation from the D.C. Circuit. We asked the Supreme Court to review EPA's first-ever regulations of greenhouse gases emitted by stationary sources, such as power plants and factories. The lower court rejected lawsuits from hundreds of organizations who questioned EPA's authority to issue the rules under the Clean Air Act, as well as the procedures it used in doing so.

Greenhouse gas regulation is one of the most costly, complex and encompassing energy regulatory issues facing manufacturers and damaging our global competitiveness. EPA’s regulations could eventually force new permitting requirements for more than 6 million stationary sources, including 200,000 manufacturing facilities, 37,000 farms and millions of other sources, such as universities, schools and hospitals – impacting every aspect of our economy.

EPA’s regulatory decisions produced what it concedes were absurd results. We argued that this was not Congress’s intent when it enacted the Clean Air Act, and that courts must avoid agency interpretations that undermine the purpose of the law.

Moreover, EPA tried to avoid these absurd results by modifying the express statutory thresholds defining who is regulated. Only Congress can make those kinds of changes, and had the agency properly interpreted the statutory requirements from the beginning, it would not be in the position of having to alter the statutory requirements.

The effects of this regulation are immediate, concrete and massive, and will require the installation of “best available control technology”, with total costs estimated by EPA to increase to more than $50 billion per year. This case is of critical importance to manufacturers and our economy.

The Supreme Court agreed to hear our appeal, along with petitions from 5 other groups, limited to the following question: "Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases."

On June 23, 2014, the Court decided that EPA's regulation went too far. A majority concluded that, while greenhouse gases are within the class of emissions that are included within the broad reach of the Clean Air Act, specific sections of that law limit the EPA's regulatory power. Five Justices found that EPA neither was compelled nor permitted to require PSD (Prevention of Significant Deterioration) permits of companies solely because of their greenhouse gas emissions. They also ruled that EPA did not have the statutory authority to rewrite the unambiguous statutory thresholds, and even if EPA would not enforce its greenhouse gas requirements on smaller emitters, those companies would have remained subject to citizen suits to enjoin construction, modification or operation and to impose civil penalties of up to $37,500 per day of violation.

Seven Justices agreed with the NAM's argument that only companies already subject to permitting under the PSD program will be subject to any permitting requirements relating to greenhouse gases. They agreed that the PSD program was intended for the largest emitters that are already subject to PSD permitting. By limiting EPA's authority in this way, the decision provides substantial regulatory relief for the owners of millions of buildings and plants across the country.

This case is about how the EPA establishes standards for maximum achievable control technology (MACT) which is used to minimize the emission of pollutants into the air. It arose in the context of a new regulation on emissions of hazardous air pollutants from electric utilities, as well as industrial-commercial-institutional steam generating units. The 2012 "Utility MACT" regulation adopts a methodology that has broad implications for industries subject to existing MACT standards that may be revised, or new standards yet to be developed.

The NAM filed an amicus brief arguing that the EPA erred in adopting a "pollutant-by-pollutant" approach. Under that approach, the EPA cherry-picks emissions data from multiple sources and sets a MACT floor based on whatever source is deemed the "best" for each individual pollutant. This often means there is a different best performer for each pollutant, and no single source of emissions will be able to achieve the regulatory requirement. The NAM believes that these measurements need to be made from producers operating under practical conditions -- not individually measuring pollutants and not from sources ideally positioned to limit their pollution, as the EPA argues. The EPA's approach is like asking a decathlon champion to be able to win not only the overall decathlon, but all of the individual events as well.

In addition, we argued that the EPA must give meaningful consideration to costs in determining whether a particular standard is achievable. The Clean Air Act requires that the level of pollution reduction that the EPA specifies be achievable, and its methodology will severely curtail or eliminate operations. Some vendors are unwilling to offer guarantees that their pollution control technology will meet the new standards, and financing of new projects is jeopardized.

On 9/12/2012, the court ordered this case to be held in abeyance pending reconsideration of the new source standards now under way at the EPA. The agency stated that it intends to complete the reconsideration by March 2013. It said it would reconsider "measurement issues related to mercury and the data set to which the variability calculation was applied when establishing the new source standards for particulate matter and hydrochloric acid." See 77 Fed. Reg. 45968 (Aug. 2, 2012).

The case was settled in 2014 by stipulated agreement.

In November, 2012, the California Chamber of Commerce filed a lawsuit challenging the legality of the fees charged by the California Air Resources Board (CARB) for the state’s cap-and-trade greenhouse gas program. The NAM moved to intervene in the litigation, focusing not on the legality of the cap-and-trade program itself or the merits of climate change science, but on the extraordinary revenues generated by the auction and reserve sale provisions adopted by CARB.

The effectiveness of the cap-and-trade program comes from the state’s ability to ratchet down greenhouse gas emissions from year to year. CARB may not go beyond this authority to generate a huge income stream for the state. The first quarterly auction of greenhouse gas allowances in November, 2012, raised nearly $289 million for California, substantially more than the $62 million required to implement the law. Moreover, that revenue is projected to increase to as much as $70 billion over the life of the program. In 2015, more than $2 billion is expected to be generated by the program, and most of the funds already collected have been earmarked for housing and transportation projects.

We argued that that income goes far beyond simply paying for the costs of administering the program, and thus exceeded the legal authority of CARB. Alternatively, even if the fees were authorized, they constitute a massive new tax that must have been approved by a 2/3 majority of the California legislature under the state constitution.

On Nov. 12, 2013, the judge ruled that the Air Resources Board was given the discretion to raise revenues by auctioning and selling allowances. The fact that the Board may charge an administrative fee does not prevent it from also auctioning the allowances. The judge also ruled that the revenues were not an unconstitutional tax, although he called that a close question. He analyzed the difference between taxes and government regulatory fees, and found the charges more like traditional regulatory fees. The primary purpose is for regulation, not revenue, the total fees don't exceed the costs of the regulatory activities, and the fees collected are reasonably related to the burden imposed by the greenhouse gas emissions. The court was at a loss to know what the fees will actually be used for, but the law requires that they be used to further the emissions reduction goals of AB 32. It admitted that "since nearly every aspect of life has some impact on GHG emissions, it is difficult to conceive of a regulatory activity that will not have an least some impact on GHG emissions." Thus, the decision gives extremely broad power to the state government to use the funds collected and not have them be considered a tax.

This income scheme will significantly raise energy costs in the state and further harm its competitiveness, without providing any additional environmental benefits, since it will still be affected by GHG emissions from elsewhere around the world.

This case alleges that the emissions of greenhouse gases from various energy and manufacturing companies led to a stronger Hurricane Katrina than might have otherwise occurred, and the companies should pay the damages. It was dismissed in litigation in 2010 summarized here.

The plaintiffs filed a new suit, and the trial court dismissed it. On appeal to the Fifth Circuit, the NAM and other groups filed an amicus brief opposing any common law cause of action for harms caused by weather events allegedly caused by climate change. The courts are not the place to make policy judgments about emissions policies for individual defendants, becoming a kind of super EPA. All the most recent Supreme Court and appellate court decisions reject this kind of liability, since EPA is already regulating greenhouse gases.

On May 14, 2013 the Fifth Circuit affirmed the district court’s rejection of plaintiffs’ claims based on the doctrine of res judicata, which holds that once a valid judgment decides a case, that decision shall stand. The case followed a complicated procedural history. The trial court decision rejecting the plaintiffs’ claims was up for an en banc rehearing by the Fifth Circuit. However, without a majority of the Circuit’s judges available to hear the case, quorum was not met and the case was not reheard. Plaintiffs then sought a writ of mandamus from the Supreme Court, which was denied. Then the plaintiffs asserted that there was not a final decision on the merits, and therefore that their claim was not barred by res judicata. The Fifth Circuit disagreed and upheld the trial court’s decision to bar the claims. At no point was the trial court’s final judgment disturbed nor was there was a decision on the merits.

An environmental group sued some logging companies alleging violations of the Clean Water Act arising from rainwater runoff in logging areas. A statute requires that suits challenging EPA actions be filed within 120 days of the action. On March 20, 2013, the Supreme Court decided that that limitation does not apply to citizen suits seeking to apply permit requirements to forest roads, since another statutory provision allows such suits. The NAM had filed an amicus brief challenging the citizen suit.

Also at issue in the case is the Ninth Circuit’s decision that storm water from logging roads is industrial storm water, in spite of an EPA determination to the contrary. The Court ruled that it was reasonable for EPA to conclude that the water runoff was directly related only to the harvesting of raw materials, rather than to "manufacturing, processing, or raw materials storage areas at an idustrial plant" as defined in the regulation. Thus, the regulation extends only to traditional industrial buildings and not foresting operations.

The decision means that citizen suits can continue to be filed well after regulations are finalized, as long as the suits challenge not the rules themselves, but seek to enforce them under a proper interpretation. The decision also means that EPA's interpretation of a regulation will continue to be given deference by the courts unless it is plainly erroneous or inconsistent with the regulation. This is particularly true where a federal regulation would be duplicative or counterproductive in light of state regulation of the practices at issue.

This case involves an effort by EPA to impose greater Clean Air Act requirements on manufacturers and fuel users. The NAM joined with other groups supporting an appeal by Luminant Generation Co. of an adverse decision from the Fifth Circuit.

The case involves the balance of power between EPA and state environmental enforcement agencies when regulating emissions from industrial process or emission control equipment during startups, shutdowns or malfunctions. During these periods, states commonly allow more lenient treatment of excess emissions from such equipment, but EPA decided to disapprove part of a Texas State Implementation Plan (SIP) that potentially excuses excess emissions during planned equipment maintenance. Companies will not be able to argue affirmative defenses to citations, making them subject to civil penalties and fines.

The dispute centers on whether Section 113 of the Clean Air Act articulates a requirement that provides a basis for EPA to disapprove the Texas plan. Our brief argued that another Section of the Act (Sec. 110) gives EPA the power to disapprove state plans that interfere with any applicable requirement of the Clean Air Act, and the lower court’s decision should be reversed on this point. We also argued that EPA’s action violates the Eighth Amendment by imposing a penalty grossly disproportionate to the offense, as well as the Fifth Amendment’s due process principles, since certain emissions during planned startups and shutdowns are unavoidable. The Texas SIP would have allowed a company to demonstrate that the offense was actually unavoidable, but the EPA action took away that defense.

On 10/7/2013, the Supreme Court declined to review this appeal.

Mingo Logan Coal Co. challenged an EPA decision that it argued retroactively changed a Clean Water Act permit issued by the U.S. Army Corps of Engineers four years earlier. This change withdrew certain creeks as disposal sites for dredged material, affecting the validity of a permit that EPA had previously reviewed and assented to, and even though the permit holder was in full compliance with it.

In March, 2012, a federal judge ruled that EPA did not have the power to revoke a valid permit -- only the U.S. Army Corps of Engineers, which issued the permit, has the authority to revoke it. The NAM filed an amicus brief in support of that result in the trial court, and that history is summarized here.

EPA appealed to the D.C. Circuit, and the NAM and other business groups filed a second amicus brief raising concerns about the substantial uncertainty that would be generated were EPA to have the power it claimed. The power to revoke a valid permit by EPA will substantially raise the stakes for any project that requires a Section 404 permit. That will distort the cost-benefit ratio and discourage new investments in any such project. The uncertainty from this looming threat will lead to higher interest rates and fewer investments, affecting downstream benefits such as job creation, housing, commercial space, food, consumer products, libraries and schools.

Unfortunately, the D.C. Circuit reversed the trial court on April 23, 2013. A 3-judge panel ruled that EPA has the final say on discharge site selection under Sec. 404(c) of the Clean Water Act. It can withdraw a specification of a stream as a suitable site for discharging dredged or fill material from a mountain-top mine at any time, including after a permit is issued. The withdrawal amends the terms and conditions specified in the permit. The court sent the case back to the trial court to resolve a remaining challenge -- whether EPA's decision was arbitrary and capricious in violation of the Administrative Procedure Act.

The NAM is a member of the Ozone NAAQS Litigation Group, which in 2008 in the U.S. Court of Appeals for the D.C. Circuit challenged the validity of the EPA's final regulation lowering certain ozone limits under the Clean Air Act. The American Lung Association, the Natural Resources Defense Council, and others are also challenging the rule, arguing that the EPA did not follow the advice of their scientific advisers to issue a tougher standard. All the petitions were consolidated under the caption, Mississippi v. EPA.

On 3/19/09, the D.C. Circuit ordered the cases held in abeyance while the new Administration considered whether to change the standards. EPA proposed revisions in January, 2010, for public comment. The NAM filed comments in March (see link below).

On April 4, 2011, the court denied our motion to begin briefing those issues that were not the subject of reconsideration, and refused to order EPA to complete its reconsideration proceeding by the July 29, 2011 date by which EPA indicated it planned to take final action. EPA forwarded a final rule to the Office of Management and Budget in July. Five of the petitioners in this case moved 8/8/11 for a court order directing EPA to complete reconsideration immediately. The NAM coalition opposed this motion because the deadline for EPA to review the 2008 Ozone rule has not yet passed, and it need not act by any specific date. We also asked the court again to renew the briefing on this litigation.

On Sept. 2, President Obama announced that he was requesting that Administrator Jackson withdraw the draft ozone standard at this time. OIRA Administrator Cass Sunstein sent a letter to EPA explaining the reasons that he was sending the proposal back to EPA for reconsideration, including that "a new standard now is not mandatory" and new scientific work is underway and will be based on the best available science. Later that day, EPA filed a notice with the D.C. Circuit saying it "no longer expects that it will take final action to complete its reconsideration of the 2008 ozone NAAQS in the near future." It filed a revised motion to govern further proceedings on Sept. 12, seeking to resume briefing, which the court did.

The Ozone NAAQS Coalition filed its brief on April 17, 2012. Key arguments included: (1) the EPA's finding that increased protection results from a lower standard is insufficient, as a matter of law, to establish that the revision is "requisite" under the statute, (2) new health evidence in 2008 does not materially differ from earlier evidence and does not support revising the standard, (3) the risks now are no greater than they were under the earlier standard, and (4) EPA misrepresented and used selective results from the latest clinical and epidemiological studies.

Our coalition filed a separate brief in July as intervenors in support of EPA defending challenges from environmental groups that the ozone standard is not stringent enough. The NAAQS standard for ozone is now at .075 ppm, and the studies EPA considered in setting this level did not support lowering it below .070 ppm, as demanded by the challengers. A clinical and some epidemiological studies did not produce any statistically significant results for levels below .080 ppm. We also supported EPA's decision regarding exposure and risk assessments.

The NAM filed a reply brief on Aug. 13 reiterating our position that the EPA did not have sufficient evidence in the record to justify its conclusion that the public health risk from ozone was any different in 2008 than it was in 1997 when it set the last ozone standard. It failed to justify why the 1997 standard was no longer “requisite,” as required by the statute, to protect public health with an adequate margin of safety. The agency also failed to rely on air quality criteria that accurately reflect the latest scientific knowledge, and set secondary standards based on the defective primary standard.

The Court issued its decision on July 23, 2013, upholding the primary ozone standard of .075 ppm, but ordering EPA to provide further explanation for its secondary ozone standard, which applies to effects of ozone on such things as animals, vegetation, visibility, property and personal comfort and well-being. With respect to the primary ozone standard, the court applied the usual highly deferential standard of review which courts apply to challenges of regulations. It found that EPA set a standard that is "requisite" to protect the public with an adequate margin of safety, holding that "requisite" protection may change over time with different policy judgments and scientific knowledge. As long as EPA reasonably and rationally explains its actions, the courts will defer to those judgments. The court likewise rejected challenges from environmental groups, saying EPA was in a situation reminiscent of Goldilocks. It upheld the agency's decision, found that it had built in a reasonable margin of safety, and allowed the agency to depart from recommendations of the Clean Air Scientific Advisory Committee because CASAC's opinion was a mix of scientific and policy considerations which EPA could decide differently.

Solano County, California, voters passed Measure E in 1984, which obstructed regional waste management by drastically limiting the volume of solid waste that could be brought into the county for disposal or recycling. It sets a low limit on waste from other counties in California, and the county stopped enforcing it after receiving legal opinions that it violated the Commerce Clause because it discriminates against and excludes waste by place of origin.

The Sierra Club and other environmental groups sued to enforce Measure E as written. The trial judge rewrote the law to apply only to other California counties, but not to waste generated outside of the state. That ruling was appealed.

The NAM and other organizations filed an amicus brief arguing that protectionist barriers like these have been struck down for decades because they interfere with interstate commerce. Simply limiting the reach of the measure to other California counties does not eliminate this problem. Solano County and thousands of others throughout the nation cannot "stand alone as economic islands around which the free flow of commerce may be diverted. Building a virtual wall around [the county] has a profound impact on the market for solid waste as an article of interstate commerce."

We urged an appeals court in California to reject laws like this that can create a patchwork of discriminatory and protectionist solid waste bans from cities and counties across the country. Allowing bans like this could lead to similar restrictions against many other goods and services, not merely solid waste, and would allow local entities to achieve what the states are prohibited from doing. The impact would be to dramatically undermine a national market of solid waste management and disposal, and could expose billions of dollars of other economic activity to discrimination by thousands of local governments.

On 7/31/2013, the court of appeal reversed the trial court's ruling and dismissed the case as moot, because California had enacted a new law (AB 845) that prohibits restrictions on the importation of solid waste based on the place of origin of the waste.

The NAM and 12 other groups moved to intervene in this suit brought by the Sierra Club over EPA's regulation of ozone. The Sierra Club and other environmental groups filed the suit to force EPA to complete its review and revision of the national ambient air quality standards (NAAQS) for ozone. EPA lowered the standard to 75 ppb in March of 2008, and now the environmental groups are trying to force EPA to take steps to finalize an additional lowering of the standard by September, 2014. The Clean Air Act requires EPA to review NAAQS every 5 years and make revisions "as may be appropriate . . . ."

The NAM group moved to intervene to help prevent the adoption of more stringent NAAQS demanded by the environmental groups. Any lowering of the standard will result in additional costly and burdensome control requirements, new emission reduction requirements, and fees, and manufacturers need to have adequate time to develop and present information to EPA concerning the present standard and a possible revision. Forcing EPA to act hurriedly "would frustrate the development of sound scientific support on the need for NAAQS revisions." The proposed timetable would make EPA "finalize its risk assessment and policy analysis, complete its consultation with CASAC [an advisory committee], publish a proposed rule in the Federal Register, solicit comments, review those comments and respond to them as necessary, send its final rule to the Office of Management and Budget for mandatory review, and publish the final rule in the Federal Register, all in the span of one year or less." This would require EPA to truncate the public comment period, to the detriment of the public and the regulated community.

Joining the NAM in the motion to intervene were the American Forest & Paper Association (“AF&PA”), American Fuel and Petrochemical Manufacturers (“AFPM”), American Iron and Steel Institute (“AISI”), American Petroleum Institute (“API”), American Wood Council (“AWC”), Automotive Aftermarket Industry Association (“AAIA”), Brick Industry Association (“BIA”), Council of Industrial Boiler Owners (“CIBO”), Independent Petroleum Association of America (“IPAA”), National Mining Association (“NMA”), Treated Wood Council (“TWC”), and Utility Air Regulatory Group (“UARG”).

On 8/20/13, the environmental groups and EPA jointly asked the court to delay further filings for 3 months while they engage in settlement discussions.

On 10/9/13, the court denied our motion to intervene, concluding "that EPA will represent adequately any interests that Proposed Intervenors might have in setting a rulemaking schedule." The judge declined to recognize that we had a "significant protectable interest" in the litigation because the rulemaking deadlines are statutory and non-discretionary. We continue to be concerned that EPA will be forced to settle its way into a rushed timeline for this regulation.

On April 29, 2014, the court ordered EPA to propose a new standard by December 1, 2014 and to finalize it by October 1, 2015. EPA had wanted an extra 45 days, but that request was denied.

In December, 2010, EPA announced its Finding of Substantial Inadequacy and SIP Call Rule for greenhouse gas emissions. It found that the laws of 13 states do not authorize them to regulate GHG emissions as is required as of January 2, 2011, and EPA requires those states to change their laws and submit revised State Implementation Plans (SIPs) for review and approval. In the meantime, EPA will use its own Federal Implemenation Plan (FIP) to regulate GHGs. The affected states are Arkansas, Arizona, parts of California, Connecticut, Florida, Idaho, Kansas, Kentucky, Oregon, Nebraska, Nevada (Clark County), Texas, and Wyoming.

The NAM and other associations that are part of the SIP/FIP Advocacy Group have petitioned two federal appeals courts to review EPA's action. This is another step in our overall challenge to EPA's efforts to regulate greenhouse gases under the Clean Air Act. We filed comments with EPA when this action was proposed, arguing that EPA's own regulations give the states 3 years to comply with the new greenhouse gas requirements, and that the state implementation plans are not "substantially inadequate" to enforce the new requirements.

A similar case was filed in the U.S. Court of Appeals for the Fifth Circuit. It was transferred to the D.C. Circuit. On 7/6/11, the court consolidated the cases into one but denied EPA's request that it be held in abeyance pending resolution of the main challenges to their greenhouse gas regulations.

On 2/8/2012, the SIP/FIP Advocacy Group filed its main brief, arguing that the Clean Air Act requires EPA to give the states 3 years to amend their SIPs to account for greenhouse gases. EPA sought, through unlawful intimidation, to coerce states to consent to GHG regulation immediately to avoid a threatened ban on new-source construction. EPA has never acted outside of these procedures, and it should be required to follow them. Until then, we ask the court to provide that no GHG-emitting sources be subject to any PSD (Prevention of Significant Deterioration) permitting requirements.

On 5/14/2012, NAM filed a reply brief arguing that EPA’s refusal to accept State Implementation Plans is invalid. EPA thinks that states may not issue preconstruction permits addressing greenhouse gases, and that EPA must take over the state's power and issue federal implementation plans. We argued that the states continue to have permitting authority and may take the time allotted by EPA regulations to implement the new greenhouse gas requirements.

On July 26, 2013, the D.C. Circuit ruled 2 to 1 that no party had standing to challenge EPA's actions because any harm was caused by the Clean Air Act and not by EPA's actions. It found that the Act's permitting requirements are self-executing and require permits for each pollutant subject to regulation under the Act even when the applicable SIP has not been updated to include requirements for newly regulated pollutants. The petitioners did not have standing, according to the majority, because a victory for them would leave them worse off than with the rules, because there would be a construction ban in those states without a SIP for greenhouse gases. The court's ruling applies to Texas v. EPA as well.

This petition challenges EPA's decision to take over 13 state Clean Air Act implementation plans governing the enforcement of greenhouse gas regulations. For details, see a similar petition in the D.C. Circuit, here.

The NAM is part of the SIP/FIP Advocacy Group, which comprises various national trade associations challenging EPA's efforts to require states to implement its greenhouse gas stationary source regulatory requirements. This suit is in response to EPA's decision, published May 3, 2011, partially disapproving Texas' implementation plan for regulating pollution. EPA rejected part of the Texas plan because it did not address how it would apply to pollutants that become "subject to regulation" in the future, such as greenhouse gases. Because it rejected the Texas plan, EPA moved to implement federal regulation of greenhouse gas emissions in Texas.

The State of Texas and other parties also filed suit against EPA, and our case has been consolidated with those. For further action in this case, click here.

The NAM and four other business organizations filed an amicus brief supporting the State of Texas in its lawsuit seeking an emergency stay of EPA’s decision partially revoking the State’s permitting authority under its Clean Air Act implementation plan. EPA took over the Texas permitting authority without notice-and-comment rulemaking on the premise that without intervention many stationary sources of greenhouse gas emissions in Texas would have to forgo construction and modification in 2011. But there was no construction ban in Texas, and EPA's intervention was not needed to prevent one.

EPA took the action in late December, 2010, after the Texas Clear Air Act implementation plan had been on the books for 18 years. EPA believes that its new greenhouse gas rules require large stationary sources of GHG emissions to obtain PSD (Prevention of Significant Deterioration) permits before beginning construction or undertaking modifications of their facilities. Most states automatically incorporate new EPA pollutants in their state plans, but Texas does not, and EPA believes Texas will not act promptly to do so. Our brief, however, argued that PSD permit requirements are not automatically incorporated into a state's implementation plan. Thus, a court may stay EPA's latest regulatory control tactic without interfering with the continuing process by which Texas issues construction and modification permits for stationary sources of emissions.

On Jan. 12, 2011, the Court granted our motion to file an amicus brief, but denied the motion for a stay. EPA's regulatory action continued in force during the litigation.

On June 18, 2012 the NAM, as part of the SIP/FIP Advocacy Group, filed its main brief to support Texas’ State Implementation Plan (SIP) against the EPA’s actions to deny it. Our brief argued that EPA cannot override the Texas SIP any time it finds fault or shifts its policy direction. EPA should not expand its powers by using legislation that was intended merely to correct clerical or technical errors in prior laws. In addition, the EPA should not have reviewed the SIP, as it was compliant with the Clean Air Act when it was implemented. Finally, we argued that EPA ignored the requirement to give notice and an opportunity to comment on rule changes.

These steps by EPA are causing harm to Texas and manufacturers, as they require businesses to obtain permitting from both the state and the federal government, and have effectively destabilized investments in Texas businesses affected by the standards.

On July 26, 2013, the D.C. Circuit ruled 2 to 1 that no party had standing to challenge EPA's actions because any harm was caused by the Clean Air Act and not by EPA's actions. It found that the Act's permitting requirements are self-executing and require permits for each pollutant subject to regulation under the Act even when the applicable SIP has not been updated to include requirements for newly regulated pollutants. The petitioners did not have standing, according to the majority, because a victory for them would leave them worse off than with the rules, because there would be a construction ban in those states without a SIP for greenhouse gases.

On Sept. 22, 2014, we petitioned the court to rehear this case, arguing that its decision directly conflicted with the Supreme Court's recent decision in UARG v. EPA. The Supreme Court ruled that the Clean Air Act cannot be interpreted to automatically require a source to obtain a PSD permit on the sole basis of its potential greenhouse gas emissions when those emissions became regulated pollutants. Because the requirements are not self-executing, the D.C. Circuit's decision based on that finding are insupportable. EPA could not reject state implementation plans that did not regulate major sources of greenhouse gases because its own regulations were not authorized.

The court ordered responses to the petition for rehearing, which were filed on November 4. On May 4, 2015, the court denied the petitions.

The NAM and 16 other business associations filed 4 petitions for review in the U.S. Court of Appeals for the D.C. Circuit, challenging EPA regulations from 1978, 1980 and 2002 that are a part of EPA's effort to regulate greenhouse gases from stationary sources of emissions. No one anticipated that these previously issued rules would be used to mandate greenhouse gas permit requirements, but that is the interpretation EPA has adopted. Our legal challenge was consolidated under the case captioned American Chemistry Council v. EPA.

We also filed an administrative petition for reconsideration with EPA on the same rules. Our lawsuits and the administrative petition challenged each of the four older rules to the extent that EPA considers them to allow the regulation of pollutants such as greenhouse gases that are not subject to a National Ambient Air Quality Standard (NAAQS). Our administrative petition went into great detail regarding the grounds for our request (see Related Documents below). The petitions below also contain the text of the regulations that were challenged.

Our main brief on the merits was filed May 10, 2011, focusing primarily on the timeliness of the lawsuits and on the fact that EPA’s interpretation of the Clean Air Act is unreasonable and creates absurd results.

Oral arguments were held Feb. 29, 2012.

We argued that Congress intended for EPA to require PSD permits only for facilities that can financially bear the substantial regulatory costs and which, as a group, are primarily responsible for deleterious emissions. The number of permits needed by facilities that meet these criteria was about 280 per year, a number consistent with congressional intent to limit the permit program to a manageable number. The greenhouse gas regulations, however, would require more than 81,000 PSD permits per year, according to the EPA, crushing EPA, state agencies and the economy.

EPA’s reading of the Clean Air Act is unlawful because it severs the link between the PSD permit program and the attainment of national ambient air quality standards (NAAQS). We argued that PSD permits are only required for emissions of a “criteria” pollutant, such as sulfur dioxide, nitrogen oxides or lead, and then only if the emissions occur in an area that has attained compliance with national standards.

EPA’s interpretation also is flawed because it leads to requiring an absurd number of permits. Its interpretation was announced three decades ago, and this is the first time a court has been asked to scrutinize its lawfulness. Only now do sources emitting major amounts of GHGs have to get PSD permits, and now their complaints about EPA’s interpretation are ripe for judicial review.

The purpose of the PSD permitting program is to maintain air quality in areas of the country that have attained satisfactory levels of quality, hence the name "Prevention of Significant Deterioration". EPA sets ceilings for each of a number of specific pollutants, and requires permits for new facilities that might emit more of those pollutants into areas in attainment. Our brief argued that EPA is now forcibly making the PSD permit program an all-purpose regulatory program. However, to do so, we argued that EPA must first define greenhouse gases as criteria pollutants, and specify the maximum levels at which they may be present in attainment areas. It has not done so, and it is arguably impossible to set meaningful NAAQS levels for greenhouse gases.

On June 26, 2012, the 3-judge panel upheld all of the primary greenhouse gas regulations. It upheld the EPA’s endangerment finding as within its discretionary power and procedurally sufficient, it upheld the tailpipe rule as being required by law once the endangerment finding is made, it found that the business community lacked standing to challenge the timing and tailoring rules because those rules helped rather than hurt, and, while it found our challenge to earlier rules in 1978, 1980 and 2002 to be timely, it rejected our legal arguments and found EPA’s interpretation compelled by the statute.

On August 10, 2012, the NAM coalition filed a petition for rehearing en banc, asking that all the judges on the D.C. Circuit review the 3-judge panel's ruling. We argued that the panel relied on an unreasonable interpretation of the Clean Air Act to approve "the most sweeping expansion of EPA authority in the agency's history, for the first time covering a broad swatch of mobile and stationary sources of greenhouse gases and granting itself discretion to determine and revise the scope of the statute’s coverage, previously fixed by the statute’s explicit terms, for the indefinite future." The panel's ruling conflicts with Supreme Court decisions, produces absurd results, and could lead to annual cost increases of more than $20 billion upon full implementation.

On December 20, 2012, the D.C. Circuit denied our petition. Judges Brown and Kavanaugh filed separate dissenting opinions that supported our arguments. Such dissents are rare, sending a clear signal that significant legal issues remain to be addressed.

On April 18, 2013, the NAM filed a Petition for Writ of Certiorari wth the U.S. Supreme Court and awaiting the Court's determination whether to hear the case. The NAM's involvement in thisw case is critical because no other petitioners have been found to have standing to challeng the PSD regulations and NAM members are adversely affected by EPA's overly burdensome requirements.

An environmental group in California spearheaded litigation and administrative proceedings in all fifty states, as well as this lawsuit in federal court against the EPA and the Departments of the Interior, Defense, Agriculture, Energy and Commerce, to try to force government to impose further greenhouse gas emissions reduction policies under a "public trust" theory. The federal suit was brought by WildEarth Guardians, Kids vs. Global Warming and five individuals who sought to preempt the federal legislative and regulatory processes by getting a federal judge to compel massive societal changes that they believe are necessary to address climate change.

On Oct. 31, 2011, the NAM moved to intervene in this litigation, because the law suit, if successful, would have a dramatic effect on manufacturing processes and investments, increasing production and transportation costs, decreasing global competitiveness and driving jobs and businesses abroad. The litigation, which seeks a minimum 6% reduction in carbon dioxide emissions every year, would be devastating to the entire U.S. economy.

Along with our motion to intervene, we asked the court to dismiss the law suit for various reasons: (1) the case presents political questions that the courts are not able to resolve, (2) the plaintiffs lack standing because their injuries are too speculative and not likely to be reduced by the relief sought, (3) the public trust doctrine does not exist under federal law and the claims have been displaced by federal regulation in this area, and (4) the doctrine does not apply to the atmosphere or require a duty to regulate greenhouse gas emissions.

A hearing was held before Judge Edward Chen on November 30, 2011 to determine whether to grant the government's request that the case be transferred from a federal court in northern California to one in the District of Columbia. The NAM supported this request. On December 6, the court agreed, ordering the case transferred. A hearing was held on April 2, and the judge granted our motion to intervene. A hearing was held on May 11 to consider our motion to dismiss the case.

On May 31, Judge Wilkins granted our motion to dismiss. He ruled that public trust claims are grounded in state, not federal, law, and the allegations in this suit represent "a significant departure" from the public trust doctrine as it has been traditionally applied to water-related activities. Federal courts may exercise jurisdiction in a case if it raises a federal question, but the public trust doctrine is a matter of state law. The judge also ruled that even if the doctrine had been a federal common law claim at one time, it has been displaced by federal regulation under the Clean Air Act. Citing the American Electric Power case from the Supreme Court, he found that federal judges may not set limits on greenhouse gas emissions "in the face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action arbitrary, capricious, . . . or otherwise not in accordance with the law."

The court closed with a suggestion that the parties need not "stop talking to each other once this Order hits the docket. All of the parties seem to agree that protecting and preserving the environment is a more than laudable goal, and the Court urges everyone involved to seek (and perhaps even seize) as much common ground as courage, goodwill and wisdom might allow to be discovered."

That is certainly a laudable suggestion, as the plaintiffs have filed administrative petitions in 39 states and the District of Columbia to seek similar relief at the state level, and 31 of those have already been denied. Suits were brought in 10 other states, and were dismissed in 9 of them, many with appeals or amended complaints in the works.

However, the plaintiffs filed a motion for reconsideration of the court's ruling, and the NAM filed an opposition on 7/16/12. The motion was denied on 5/22/13.

The EPA has been reconsidering whether to lower the limits on ozone emissions from stationary sources since early in 2010, and engaged in a lengthy reconsideration process. Finally, President Obama called on EPA to put aside their reconsideration of the existing standard. OIRA Administrator Cass Sunstein sent a letter to EPA explaining the reasons that he was sending the proposal back to EPA for reconsideration, including that "a new standard now is not mandatory" and new scientific work is underway and will be based on the best available science. EPA then withdrew its proposed regulation and terminated reconsideration of the March 2008 standards.

The American Lung Association, Environmental Defense Fund, Natural Resources Defense Council and Appalachian Mountain Club sought court review of this decision. The Ozone NAAQS Litigation Group, of which the NAM is a member, moved to intervene in this litigation to support EPA's decision not to change the existing ozone limits at this time. Our participation is needed because EPA represents the "general public interest" and the agency may not adequately represent the interests of manufacturers in avoiding costly and burdensome emissions limitations. On Dec. 1, we filed an opposition to the ALA's motion to coordinate or consolidate this case with Mississippi v. EPA, involving the 2008 ozone standard. We argued that ALA's motion is premature, since EPA is considering filing a motion to dismiss, which, if granted, would moot other issues in the case.

On Feb. 17, 2012, the Court dismissed ALA's petition for review, saying that it "lacks jurisdiction over the agency's non-final decision to defer action on the 2008 voluntary revision of the national ambient air quality standards for ozone." This decision mooted all the other issues in the case. The court also adopted a briefing schedule for separate litigation challenging the 2008 standard.

On October 12, 2010, the Secretary of the Interior lifted the moratorium on deepwater drilling in the Gulf of Mexico, after extensive consultations with the Bureau of Ocean Energy Management. When the Bureau approved Shell's exploration plan (EP), some environmental groups sued to halt the exploration. They sought to overturn the Bureau's "Finding of No Significant Impact," claiming that erroneous assumptions led the agency to understate the risk of an oil spill.

The court reviewed the issues whether Shell’s EP violated the environmental assessment provisions of the National Environmental Policy Act (NEPA) or the interagency consultation provisions of the Endangered Species Act (ESA). On June 22, 2012, the court denied the petition for review, refusing to overturn the Bureau's approval of Shell’s EP to conduct deepwater drilling in the Gulf of Mexico because the environmental group petitioners failed to overcome the extremely deferential “arbitrary and capricious” standard of review for the Bureau's actions.

On Nov. 23, 2011, the NAM joined with other business organizations in an amicus brief in support of the Bureau's decision. Reimposing a moratorium would do little to protect the environment and would stall America's economic recovery and compromise our energy security. The toll would be particularly high for communities in the Gulf States that have faced more than their fair share of disasters and are still recovering from losses caused by Hurricanes Katrina and Rita, the Macondo oil spill, the drilling moratorium and the current slowdown in regulatory approvals. Slow approvals also affect the overall U.S. economy, meaning fewer jobs, less oil and gas production, foregone tax revenue and royalties, and increased dependence on foreign oil.

Our argument focused on the Bureau's statutory obligation to balance economic and energy-policy interests with environmental effects. Jobs and energy security must be taken into account under the law, and exploration of the Outer Continental Shelf involves billions of dollars in investments and hundreds of thousands of jobs. This lawsuit threatened to require extensive Environmental Impact Statements (EIS) for every exploration plan. However, the court explained that it is within the Bureau's discretion to not require a separate EIS for every exploration and that it could rely on prior EISs to approve future EPs. In addition, the court held that when interagency consultation is reinitiated, the prior consultations remain valid until the new process is completed.

Ultimately, the court deferred to the Bureau's balancing of environmental concerns with the expeditious and orderly exploration of resources in the Gulf of Mexico and denied the environmental groups petition for review of the Bureau’s action.

See Center for Biological Diversity v. Salazar for a summary of this case. All the challenges to the polar bear regulations were consolidated in one case.

Mingo Logan Coal Co. challenged an EPA decision that it argued retroactively changed a Clean Water Act permit issued by the U.S. Army Corps of Engineers four years earlier. This change withdrew certain creeks as disposal sites for dredged material, affecting the validity of a permit that EPA had previously reviewed and assented to, and even though the permit holder was in full compliance with it.

The NAM and 11 other business groups filed an amicus brief urging the trial court judge to rule that EPA does not have the authority to modify previously issued permits under Section 404 of the Clean Water Act. The section 404 permitting program authorizes roughly 60,000 permits representing about $220 billion in economic investment every year, and EPA's assertion of authority to revise existing permits creates tremendous investment uncertainty for all permit holders and potential project proponents. Inevitably, that uncertainty will translate into higher risks in borrowing, less investment, lost jobs and slower growth throughout the U.S. economy.

Our brief highlighted the dramatic change that EPA's action represents. Section 404 permits are required for the discharge of fill material into waters of the United States (including wetlands), and affects construction of utility infrastructure, housing and commercial development, renewable energy projects like wind farms or solar arrays, and transportation infrastructure projects such as highways and rail lines. While EPA has occasionally exercised its authority and often uses the threat of such action to obtain concessions during the permitting process, it has never before used Section 404(c) authority to review a previously permitted project.

We also highlighted a study by Dr. David Sunding, a professor at UC Berkeley, showing that the threat that EPA may modify existing permits distorts the cost-benefit ratio of new investment projects. Existing permits are already subject to the Army Corps of Engineers' regulations governing suspension, revocation and modification, and now EPA's interference will delay or deter investment in new projects. For example, a 2% chance that EPA would act adversely decreases a project's cost-benefit ratio by an astounding 30%. Also detailed are effects on bank financing and interest rates, bond ratings, rationed credit, land prices, and other harms throughout the economy.

On Sept. 23, the government moved to strike the Sunding report from consideration, as it was not part of the record considered by EPA. We opposed this motion, arguing that EPA was repackaging their efforts to exclude us from the case, efforts that were rejected by the court in August. We also argued that the report did not add to the administrative record, but provided context for the court to interpret Section 404(c) and to understand the broad consequences that flow from the government's theory of liability.

On March 23, 2012, Judge Amy Berman Jackson ruled that EPA does not have the authority to render a permit invalid once it has been issued by the Army Corps of Engineers. The ruling found that Section 404(c) does not expressly give EPA that power, and even if it did have some power to interpret that section, its interpretation was unreasonable. The Corps is the only permitting agency identified in the statute, and the judge said, "This is a stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute." It has the power to block the initial issuance of permits by refusing to allow the Corps to specify certain areas as disposal sites. But even if it had the power to subsequently remove the designation of certain sites, that does not affect the validity of the existing permit, which only the Corps can issue. Mingo Logan need only comply with the terms of the original permit.

The court described as "magical thinking" EPA's position that withdrawing a specification of a disposal site revokes the permit that affects that site. "It posit[ed] a scenario involving the automatic self-destuction of a written permit issued by an entirely separate federal agency after years of study and consideration. Poof!" Thus, even if the agency were accorded some deference under administrative law procedures, the agency's interpretation was unreasonable and could not stand. The judge also cited the NAM's amicus brief to show that eliminating finality from the permitting process would have a significant economic impact on industry, in turn making EPA's assertion of power less reasonable.

EPA appealed this ruling to the D.C. Circuit and won. Click here for details.

On July 6, 2010, the NAM and 15 other business associations filed a petition for review in the D.C. Circuit challenging the EPA's final regulation of light-duty motor vehicles, also known as the Section 202 motor vehicle rule or the tailpipe rule. EPA has announced that this rule, which regulates greenhouse gases from certain motor vehicles, was effective on January 2, 2011. The rule thus established the first EPA regulation of greenhouse gas emissions, and the agency previously announced that once a pollutant is regulated, the usual permit requirements of the PSD program (Prevention of Significant Deterioration) kick in. As a result of this combination of interpretations, EPA has begun to regulate stationary sources of greenhouse gas emissions such as manufacturing facilities around the country.

Our lawsuit was the third in a series of suits challenging four EPA rules that together implement the greenhouse gas regulatory program. Our fundamental concern was over EPA's decision to automatically trigger PSD regulation of all stationary sources.

On Sept. 15, 2010, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December.

On June 3, 2011, the NAM and 66 other parties filed a combined brief, as required by court order, detailing all the key arguments arising from the motor vehicle rule. Section 202 of the Clean Air Act requires EPA to justify the level of emissions controls imposed by explaining why those controls represent a rational choice in light of the identified endangerment risk. However, EPA said that it had no obligation to show that its regulations would be effective or reduce harm. It failed to justify its interpretation that the light-duty motor vehicle rule triggers stationary source regulations, and failed to address the enormous burdens and costs imposed on stationary sources.

The motor vehicle regulation arises under Title II of the Clean Air Act, while the regulation of stationary sources of emissions is governed by Title I, which focused on local emissions in defined geographical areas causing elevated ground-level exposures to a pollutant. EPA failed to exercise its discretion to limit the scope of the pollutants subject to the Title I, Part C PSD program, as it has done in another context -- the visibility program under the state part of the Clean Air Act.

We also argued that EPA failed to address the “absurd consequences” that the motor vehicle rule produces for stationary sources of greenhouse gas emissions. Had it done so, EPA could have avoided those consequences by adopting a more reasonable interpretation of the Clean Air Act. Instead, it told the regulated community to address the stationary-source consequences of its regulation of greenhouse gases in the tailoring rule proceeding, but then refused to address the stationary source impacts in the tailoring rule, because that rule provided only relief and did not impose costs. This failure to consider the stationary-source impacts violates Section 202 of the Clean Air Act and is inconsistent with multiple mandates from Congress and the President.

The brief itemized several statutes and orders mandating that EPA consider economic effects: (1) Section 317 of the Clean Air Act, which requires an economic impact assessment, (2) the Regulatory Flexibility Act, which requires an analysis of effects on small businesses, (3) the Unfunded Mandates Reform Act, which requires an assessment of the impact on state and local governments, (4) the Paperwork Reduction Act, which requires OMB approval for significant information-collection obligations, (5) Executive Order 12898, which requires addressing disproportionate effects on minority and low-income populations, and (6) Executive Order 13211, which requires an assessment of a rule’s impact on energy supply, distribution and use.

The brief also argued that EPA has not demonstrated that the final rule will meaningfully and substantially reduce any endangerment to public health or welfare. It adds virtually no additional benefits to already existing fuel economy standards issued by the National Highway Transportation Safety Administration (NHTSA).

Oral arguments were held on February 28, 2012.

On June 26, 2012, the 3-judge panel upheld all of the primary greenhouse gas regulations. It upheld the EPA’s endangerment finding as within its discretionary power and procedurally sufficient, it upheld the tailpipe rule as being required by law once the endangerment finding is made, it found that the business community lacked standing to challenge the timing and tailoring rules because those rules helped rather than hurt, and, while it found our challenge to earlier rules in 1978, 1980 and 2002 to be timely, it rejected our legal arguments and found EPA’s interpretation compelled by the statute.

In February, 2010, the NAM and other business groups filed a petition in federal appeals court challenging the U.S. Environmental Protection Agency’s (EPA) decision to regulate greenhouse gas (GHG) emissions from stationary sources through the Clean Air Act. Joining the NAM on the petition were the American Petroleum Institute, the National Petrochemical & Refiners Association, the National Association of Home Builders, the Corn Refiners Association, the Brick Industry Association, the Western States Petroleum Association and the National Oilseed Processors Association.

On March 18, 2010, a group of 21 industry associations and chambers of commerce filed a motion to intervene in the NAM suit in support of our position. This group represents a wide cross-section of sectors around the country that will be severely affected by EPA's effort to regulate stationary sources of greenhouse gases under the Clean Air Act.

A variety of other business groups and some states also challenged the endangerment finding. Some of these groups asked the EPA directly to reconsider its finding, but the agency turned down the request in July, 2010. In the endangerment case, industry's opening brief was filed on May 20, 2011. Because the court required that all non-state petitioners and intervenors file only one brief, the views of 80 parties were consolidated, and the resulting brief includes disparate arguments from a variety of interests.

The brief explains that EPA does not say what constitutes a “safe climate,” acceptable global temperature ranges, or “safe” levels of GHGs in the atmosphere, nor will anyone be able to judge whether or when EPA has ever achieved a congressionally defined goal. EPA will not be able to say that its action will reduce global temperatures or that a temperature reduction will avoid an actual danger to public health and welfare.

The brief focused on, among other things, key EPA errors relating to (1) construing its authority to produce absurd results, (2) failing to provide a rational basis for determining whether GHG regulations will mitigate a defined public health or welfare risk, (3) lumping together six pollutants without making separate determinations about the effects of each, (4) failing to consider future mitigation and adaptation steps that impact whether health and welfare are endangered, and (5) failing to follow statutory procedures, including consultation with its own Science Advisory Board.

Congress did not intend for EPA’s endangerment finding to produce absurd results, yet that is the effect of EPA’s finding. The EPA should not have used the endangerment finding to cause PSD permitting requirements, since those requirements apply to emissions whose harm is concentrated in a particular geographic area. It should have adopted a more restricted reading of the statute, instead of a broad reading that would be narrowed by the absurd results doctrine.

We also argued that EPA has no rational basis for treating all six GHGs from motor vehicle emissions as a single air pollutant. Automobiles do not emit 2 of the six pollutants, and each of the pollutants that are emitted has radically different heat-trapping properties. In addition, EPA’s use of a “CO2 equivalent” as a proxy for regulation of each gas individually unlawfully avoids having to make endangerment findings for five of the six GHG air pollutants it seeks to regulate.

EPA also refused to consider “whether any harms from the regulated emissions will be independently averted or mitigated.” The agency also ignored emissions reductions that will occur from implementation of the Energy Independence and Security Act of 2007.

EPA's response was filed on Aug. 18, 2011. The agency argued that the administrative record was sufficient, that it reasonably classified six gases on one pollutant, and that it did not need to consider costs, administrative burdens, benefits or mitigation when making its endangerment finding. It also argued that it was not required to submit the proposed finding to the Science Advisory Board for review, and that complaints that it did not do so came too late in the process.

This litigation is one of many suits by the NAM and our coalition partners against EPA's attempt to regulate GHGs. In one, we challenged the agency’s interpretation of the so-called “Johnson Memo,” where EPA stated for the first time that it would apply controls on greenhouse gas emissions on a wide range of manufacturing and other stationary sources. See our summary in NAM v. EPA described as "Challenging EPA's STR interpretation". We subsequently filed additional suits challenging EPA's tailoring rule, tailpipe rule, and other rules being used to regulate stationary sources of greenhouse gases.

On September 26, 2011, the EPA's Inspector General issued a report in part finding that EPA did not make an independent assessment of key scientific evidence that it relied on in issuing its endangerment finding. We then asked the court to take judicial notice of the report. Public documents that are not already in the record of a case may be considered by a court, and we brought this development to the court's attention because it is directly relevant to EPA's claim in court that it exercised independent judgment when reviewing the scientific evidence.

Oral arguments were held on Feb. 28, 2012.

On June 26, 2012, the 3-judge panel upheld all of the primary greenhouse gas regulations. It upheld the EPA’s endangerment finding as within its discretionary power and procedurally sufficient, it upheld the tailpipe rule as being required by law once the endangerment finding is made, it found that the business community lacked standing to challenge the timing and tailoring rules because those rules helped rather than hurt, and, while it found our challenge to earlier rules in 1978, 1980 and 2002 to be timely, it rejected our legal arguments and found EPA’s interpretation compelled by the statute.

On June 1, 2010, the NAM and other business organizations filed suit against EPA's latest interpretation of the so-called “Johnson Memo,” where the Agency stated for the first time that it will apply controls on greenhouse gas emissions on a wide range of manufacturing and other stationary sources beginning on January 2, 2011. This is the second piece of litigation against the EPA, which has issued 4 rules and interpretations that all combine to set limits on stationary sources of greenhouse gas emissions. Manufacturing facilities are among many sources of such emissions, and legal challenges must be filed now even though enforcement against many of these sources will not occur immediately.

This case is related to our challenge to EPA's endangerment finding. See our summary in NAM v. EPA described as "Challenging EPA's endangerment finding".

On Sept. 15, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December, 2010 and we spent 2011 filing briefs in all the greenhouse cases on the merits. Oral argument was held in the D.C. Circuit on February 29, 2012.

On June 26, 2012, the 3-judge panel upheld all of the primary greenhouse gas regulations. It upheld the EPA’s endangerment finding as within its discretionary power and procedurally sufficient, it upheld the tailpipe rule as being required by law once the endangerment finding is made, it found that the business community lacked standing to challenge the timing and tailoring rules because those rules helped rather than hurt, and, while it found our challenge to earlier rules in 1978, 1980 and 2002 to be timely, it rejected our legal arguments and found EPA’s interpretation compelled by the statute.

On August 2, 2010, the NAM and 16 other business associations filed a petition for review in the D.C. Circuit challenging the EPA's final regulation that sets out its schedule for enforcing regulatory controls on greenhouse gas (GHG) emissions from stationary sources. The agency has previously announced that greenhouse gas emissions are subject to regulation beginning January 2, 2011, and the usual permit requirements of the PSD program (Prevention of Significant Deterioration) kick in. Because there are millions of facilities that fall under EPA's regulatory requirements, the agency has adopted the tailoring rule to focus its initial enforcement only on facilities with the largest amounts of GHG emissions.

This is the last of eight petitions filed by the NAM coalition of business organizations challenging EPA's efforts to regulate stationary sources of greenhouse gases.

Our lawsuit is the third in a series of suits challenging four EPA rules that together implement the greenhouse gas regulatory program. Our fundamental concern is over EPA's decision to automatically trigger PSD regulation of all stationary sources.

On Sept. 15, 2010, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December.

On June 20, 2011, the NAM and several other industry associations filed the fourth major legal brief challenging the EPA’s regulation of greenhouse gas emissions. This brief argued, in part, that the EPA’s tailoring rule essentially rewrote parts of the Clean Air Act by changing clear, congressionally established numerical thresholds for pollutants that are subject to regulation. The brief reiterated that the Clean Air Act was never meant to regulate GHGs. As a result, the rules should be vacated and remanded.

Oral arguments in the case were held on Feb. 29, 2012.

On June 26, 2012, the 3-judge panel upheld all of the primary greenhouse gas regulations. It upheld the EPA’s endangerment finding as within its discretionary power and procedurally sufficient, it upheld the tailpipe rule as being required by law once the endangerment finding is made, it found that the business community lacked standing to challenge the timing and tailoring rules because those rules helped rather than hurt, and, while it found our challenge to earlier rules in 1978, 1980 and 2002 to be timely, it rejected our legal arguments and found EPA’s interpretation compelled by the statute.

On August 10, 2012, the NAM coalition filed a petition for rehearing en banc, asking that all the judges on the D.C. Circuit review the 3-judge panel's ruling. We argued that the panel relied on an unreasonable interpretation of the Clean Air Act to approve "the most sweeping expansion of EPA authority in the agency's history, for the first time covering a broad swatch of mobile and stationary sources of greenhouse gases and granting itself discretion to determine and revise the scope of the statute’s coverage, previously fixed by the statute’s explicit terms, for the indefinite future." The panel's ruling conflicts with Supreme Court decisions, produces absurd results, and could lead to annual cost increases of more than $20 billion upon full implementation.

On December 20, 2012, the D.C. Circuit denied our petition. Judges Brown and Kavanaugh filed separate dissenting opinions that supported our arguments. Such dissents are rare, sending a clear signal that significant legal issues remain to be addressed.

On April 18, 2013, the NAM filed a Petition for Writ of Certiorari with the U.S. Supreme Court and awaiting the Court's determination whether to hear the case.

The NAM and 5 other business associations have asked the U.S. Court of Appeals for the Fifth Circuit to review EPA's decision published July 15 to disapprove revisions to a Texas Clean Air Act implementation plan that relates to the state’s Flexible Permits Program. The Texas plan was submitted to EPA for approval in 1994 and revised several times since then. After a recent notice-and-comment period, EPA decided that the Texas plan did not meet its requirements for a minor plan revision ("Minor NSR SIP revision") for various reasons described in its decision. Alternatively, it ruled that the plan did not meet its requirements for a substitute Major NSR SIP revision.

This petition for review is the first step in a proceeding that will eventually present the court with detailed legal issues to be resolved. The Texas flexible permits program allows operators of facilities that generate air emissions flexibility in managing their operations. While one flexible permit is allowed per plant site or account, the applicant can choose which facilities and pollutants to include. The permits allow plants to exceed pollution limits from individual emission sources as long as the facility as a whole remains below an overall emissions cap. EPA's action highlights a serious struggle between national and state environmental authorities in regulating air emissions.

Click here for further developments in this case, which has been consolidated with Texas v. EPA.

A native village in Alaska sued various energy companies, alleging that greenhouse gas emissions cause climate change and made them relocate their village because of flooding. The trial court dismissed the case because it involves political questions that are not for courts to decide. It also said the plaintiffs did not have standing because they were unable to establish that their injuries are fairly traceable to the named defendants.

The issue was appealed to the Ninth Circuit. The NAM filed an amicus brief July 7, 2010, arguing that the case represents an unprecedented attempt by environmental lawyers to recast public nuisance as a "super tort", in an effort to bypass 4 time-honored elements of fundamental public nuisance law. Their theory is unfounded in federal or state law, and they cannot establish direct causation between the defendants' energy activities and the plaintiffs' injuries. In addition, to determine whether the elements of proving public nuisance were met, a court would have to address complex political questions and establish nationwide emissions standards.

Even the plaintiffs admitted the case was born out of their frustration with the legislative process. Allowing this kind of suit would give rise to endless claims of liability in highly speculative mass tort cases after every harsh weather event.

On September 21, 2012, the Ninth Circuit dismissed the case, finding that the plaintiffs' claims were displaced by federal law. Because EPA is regulating greenhouse gases, federal common law cannot be the basis for public nuisance claims in this area. This is another in a series of cases involving public nuisance claims arising from greenhouse gas emissions, including the Comer, American Electric Power, and Tennessee Valley Authority cases, all of which the NAM has participated by filing amicus briefs. The AEP case largely rejected this kind of wasteful litigation, but left open the possibility of nuisance claims under state law.

The development of Alaska offshore oil resources is the center of legal disputes involving exploration permits issued by the Department of the Interior. Environmental groups have filed multiple lawsuits to impair the permitting process, and this one alleged violations of the National Environmental Policy Act (NEPA) and the Outer Continental Shelf Lands Act (OCSLA). At issue was a revised exploration plan prepared by Shell following an extensive environmental assessment and approved by the Department. The Government’s latest estimates show that the Beaufort Sea contains a staggering 6.3 billion barrels of undiscovered oil that is economically recoverable at roughly current market prices, and a recent economic analysis estimates that the development of these resources, including the Chukchi Sea, will create an annual average of over 54,000 new jobs over the next 45 years, generating $145 billion in employee payroll.

The NAM and other business groups filed an amicus brief Feb. 3, 2012, arguing that the OCSLA was adopted with the specific goal of encouraging the expeditious exploration and production of the Outer Continental Shelf. Thousands of exploration plans have already been approved under quick timetables, including 31 exploratory wells in the Beaufort Sea. The Department should be able to use its scientific and technical expertise to approve the exploration plans without undue court interference.

The first lawsuit was filed challenging an offshore exploration plan in the Beaufort sea, and a second was filed challenging a similar plan in the Chukchi Sea. These cases were consolidated in March, and on April 3, the NAM and other business groups filed a supplemental amicus brief raising the same concerns we had expressed before.

On May 25, the Ninth Circuit rejected the environmental challenges to the exploratory permits. It found that one part of the challenge was made moot by a subsequent filing of documentation, and that the agency was not arbitrary and capricious in issuing the company's plan with the documentation provided. Also, an agency can approve applications that have inconsistent statements, because the statements were not made by the agency and the statements reflected changing circumstances. Other evidence in the record need not be fully reconciled by the agency as long as the agency's conclusion is supported by substantial evidence on the record considered as a whole. The agency complied with the law's requirements to ensure that the exploration plan would not probably cause serious harm or damage to life, property or the environment, and its decision is entitle to deference when supported by the record.

A couple who graded a small lot to build a house was ordered by EPA under the Clean Water Act to fill in the lot, replace vegetation and monitor the land for 3 years, or face a $32,500 penalty for each day of violation. They sought court review of the order, but were denied.

On March 21, 2012, the Supreme Court decided that they have a right to go to court to get pre-enforcement review of the order. They do not have to wait for EPA to sue them for violating the order in order to raise their claims. The unanimous Court held that the Administrative Procedure Act allows aggrieved parties to sue an agency after it takes "final agency action," and EPA's order qualified. Although the majority did not limit the claims that could be raised in such a challenge, Justice Ginsburg's concurring opinion argued that a challenge could only involve EPA's jurisdiction over the land in question. It remains to be seen whether the Court's opinion is ultimately interpreted in such a limited manner.

The NAM filed an amicus brief in 2011 supporting this result.

The case has implications beyond the Clean Water Act to similar orders under the Solid Waste Disposal Act (Resource Conservation and Recovery Act) and the Safe Drinking Water Act. EPA orders such as this one essentially coerce alleged violators into compliance, denying due process. Pre-enforcement review by the courts is a critical check on agency abuse. Otherwise, persons subject to such orders risk substantial financial penalties for violating an order even if they did not violate the Clean Water Act itself.

One of the claims the landowners hope to raise is whether their property is even subject to EPA jurisdiction in the first place. This question involves defining "waters of the United States," and, as Justice Alito mentioned in his concurring opinion, neither Congress nor EPA has provided a clear answer to this question. The NAM supports efforts to prevent EPA and the U.S. Army Corps of Engineers from expanding the federal government's regulation of private and public lands under the Clean Water Act, since such expansion would create significant regulatory barriers to economic growth in an already struggling economy. In 2011, we filed extensive comments on this proposed agency action.

The NAM and other groups moved to intervene in a law suit brought by the Sierra Club against EPA over the agency's decision to delay the effective date of new regulations on boilers and incinerators. The rules, issued on March 21, 2011, concern major source industrial boilers and commercial and industrial solid waste incinerators. When it published the rules, EPA announced that it would initiate administrative reconsideration of them, and later delayed the effective dates during the reconsideration period. Our intervention in this case was intended to support the EPA's decision to delay implementation.

At the same time, the NAM challenged the boiler MACT and incinerator rules themselves. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors, and they force companies to make compliance investment decisions well in advance of their effective dates.

This suit by the Sierra Club was voluntarily dismissed on March 29, 2012. A similar suit brought in federal district court ended when the court invalidated EPA's delay notice.

On December 3, 2010, the NAM and others filed a joint brief arguing that states have substantial discretion under federal law to adopt flexible requirements the apply to minor changes in plant operations as long as air quality is protected. We also argued that the Texas program meets all the federal Clean Air Act (CAA) standards, is in some cases years ahead of schedule, and the EPA’s action more than 15 years after the adoption of the Texas program has no legal support. EPA has also failed to defer to Texas’ interpretation of its own regulatory laws, as required by federal law. This litigation is intended to eliminate the ambiguity of EPA’s latest actions and to restore predictable air pollution control regulation in Texas.

On Aug. 13, 2012, the Fifth Circuit agreed, throwing out EPA's action. The court found that EPA's demands for language and program features in the state's implementation plan had no basis in the Clean Air Act or its implementing regulations. Instead, the Act sets goals and basic requirements, and gives the states broad authority to determine the methods and particular control strategies they will use to achieve the statutory goals. Environmental regulation is a shared responsibility of the federal and state governments, and EPA must approve state plans that meet the requirements of the Clean Air Act within 18 months of a state's submitting them for approval.

The Court rejected an EPA effort to require the state to adopt express language prohibiting major sources from evading statutory major new source review regulations. It found no requirement in the statute compelling such a statement, and even EPA's prior views accepted wide variations in state enforcement program language. Thus, EPA's attempt to require specific language in a state's implementation plan violated principles of federalism embodied in the Clean Air Act, as well as the Administrative Procedure Act.

The Court also rejected EPA's criticism of the flexible permit program's monitoring, recordkeeping and recording provisions. Texas allows its enforcement director discretion to write monitoring and recordkeeping requirements into each permit, based on the size, needs, and type of facility applying for a permit. The Court found that there was no authority in the law to allow EPA to limit the director's discretion, and EPA provided no evidence that the Texas program interferes with attaining Clean Air Act requirements. In fact, EPA approved similar director discretion in previous state plan amendments.

Finally, the Court rejected similar EPA arguments about the methodology allowed for calculating each emissions cap at a permitted facility. The agency's objections "rely on standards not found in the CAA or its implementing regulations."

The NAM and other major energy and business trade associations sought to intervene on the side of the Department of Interior, defending a lawsuit brought by 15 environmental groups against the agency’s expedited siting of transmission lines under the Energy Policy Act of 2005. Led by the Wilderness Society, the environmentalists sued in U.S. District Court, Northern District of California, to stop the designation of energy corridors in the western United States, specifically the West-wide Energy Corridors (WWEC). The groups had previously challenged the Department of Energy’s designation of corridors through the administrative process.

On Dec. 17, 2009, the NAM filed a motion to intervene as an intervenor/defendant in the litigation, joined by the Edison Electric Institute, American Public Power Association, National Rural Electric Cooperative Association, American Gas Association, and U.S. Chamber of Commerce. The Environmental Protection Act includes many provisions necessary to expedite development of a modernized electricity grid to meet increased demand, and the NAM endorses policies that will expedite development of a "smart grid," which will save manufacturers money. The NAM supports the identification and designation of corridors across federal lands, and this lawsuit threatened to block or impose additional delays or regulatory constraints on the WWEC.

Our motion to intervene was granted on March 9, 2011. A settlement was reached in this case, and a joint motion to dismiss was granted on 7/11/12. It called for periodic interagency reviews, agency guidance, training and a corridor study to assess whether the corridors are efficient and environmentally sensitive.

The Supreme Court reversed a very troubling decision by the U.S. Court of Appeals for the 2nd Circuit that allowed 8 states to sue 6 major electric utility companies under a public nuisance theory. The theory is that each state is adversely affected by climate change caused in part by the utilities’ electricity-generating plants, and the courts should impose emissions limits.

The NAM and other business groups filed an amicus brief urging review of the case. We argued that only the political branches of government are equipped to resolve the complex and dynamic issues relating to climate change regulation, that the plaintiffs’ legal claims exceed the boundaries of public nuisance litigation, and that judges and juries are not empowered or competent to exercise extraordinary regulatory powers without clear boundaries and guiding principles.

Our brief argued that this case is far from the "ordinary tort suit" that the lower court thought it was. Instead, it is quite extraordinary, and the judiciary "has no experience dealing with public nuisance litigation created by a global phenomenon resulting from the release of greenhouse gases by millions, if not billions, of sources (including natural events) worldwide -- very few of which are subject to the jurisdiction of American courts or under the control of these defendants." It is inappropriate for courts to entertain standardless public nuisance litigation in an area that should be addressed by the political branches of government.

Click here for a summary of the Second Circuit's decision and the NAM brief in that court.

The Supreme Court's decision to review this case was announced on Dec. 6, 2010.

On 2/7/11, we filed a brief on the merits, arguing that courts cannot resolve political questions like this because there are no judicially discoverable and manageable standards to handle them, and courts have neither the expertise nor the authority to make those judgments. Public nuisance claims have been limited by geographical boundaries and defined circumstances, and courts should not step into legislative and executive branch issues to try to address public nuisance cases of global dimensions. A public nuisance is "the right thing in the wrong place, like a pig in the parlor instead of the barnyard." But were courts to impose judicial limits on electricity generating plants, they would be removing the geographic limitation and would be acting without a standard. In addition, public nuisance cases involve defined circumstances where the controversy can actually be resolved by an abatement order. Such an order in this case cannot be designed with any standard that would project or evaluate its efficacy. This litigation is not an "ordinary tort suit," but rather involves wholly new claims that are unbounded by any rational constraints, and courts should leave their resolution to the legislative and executive branches.

On June 20, 2011, the Court ruled that EPA action to regulate greenhouse gases displaces any federal common-law right to seek abatement of GHG emissions. There is no need for the courts to develop federal common law when Congress addresses a question of national concern, such as the regulation of air and water. It does not matter whether EPA actually exercises its authority to regulate GHGs; as long as the field of GHG regulation has been delegated to EPA, federal common law is displaced.

The NAM had urged the Court to overturn the lower court’s extreme ruling, and the Court agreed, up to a point. While it rejected the federal common-law claims, it left open the possibility that such a suit could be brought under state nuisance law. It sent the case back for the lower court to consider whether the Clean Air Act preempts state-law suits as well.

As part of our continuing efforts to make sure that EPA does not exceed its authority in the regulation of greenhouse gases from stationary sources of emissions, the NAM and 15 other business organizations in our coalition has moved to intervene in a lawsuit brought by an environmental group challenging EPA's power to focus on the largest emitters first. If the environmental group is successful, EPA and various states may be required to apply much more stringent criteria to permitting programs, which could impose enormous costs from foregoing operations or installing emission-control technology. Our motion to intervene does not concede that EPA's decision to regulate greenhouse gases is legally permissible.

The Center for Biological Diversity (CBD) sought a court order holding this case in abeyance pending resolution of other challenges to the tailoring rule, but the court rejected that request on June 15, 2011. The next day, CBD voluntarily moved to dismiss this case.

The NAM and other organizations have also filed a separate petition to review the EPA's tailoring rule. For a complete listing of NAM cases against EPA, click here.

The NAM and other business organizations moved to intervene in a case brought in California by three environmental organizations which challenged the Department of the Interior's rule relating to naming the polar bear a threatened species under the Endangered Species Act (ESA). Our involvement did not challenge or support that designation, but supported the Department's conclusion not to require special permits for companies that conduct greenhouse gas-emitting activities. Any activity that harms a threatened species may constitute an "incidental taking" and may require a special Fish & Wildlife Service (FWS) permit. Under the new rule, the government provided an exception for greenhouse gas emissions, since their effect on global warming cannot be traced to any particular activities in particular locations.

In a separate case, we challenged a particular provision that did not exempt the state of Alaska from the greenhouse gas exception. See American Petroleum Institute v. Salazar. After we filed that case, EPA amended the rule to eliminate the "Alaska gap" carve-out provision, but left in greenhouse gas requirements for operations within the current range of the polar bear. We continued to challenge that limited ruling (see Amended Complaint below).

On 12/3/08, our motions to transfer and consolidate this case with others filed in federal court in the District of Columbia were granted. This case was consolidated with Defenders of Wildlife v. Dep't of the Interior, which challenged the Department's Section 4(d) rule as having been promulgated without conducting an environmental impact analysis and as not providing for the conservation of the polar bear. Since these cases have been consolidated, our summary is consolidated here as well.

In 2010, we filed a memorandum and reply brief supporting the decision not to extend liability for affecting polar bears to activity occurring outside the current range of the bear. This will allow energy and industrial activity permitted under the Clean Air Act, the application of pesticides allowed under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and other economic activities. The Endangered Species Act is not the proper mechanism for controlling carbon emissions. The U.S. Fish and Wildlife Service's decision is reasonable and supported by the statute.

On Nov. 4, 2010, the district court judge rejected the Service's view that only species that are in imminent danger of extinction are "endangered" under the law, and ordered the Service to reconsider its rule in light of the ambiguity of that term. The statute mandates consideration of 5 factors and the best available science to determine whether a species is endangered, and the agency should consider them and issue a new interpretation for court review. The existing rule will remain in effect while this new interpretation is under review.

After a hearing on April 13, 2011, the judge ordered the parties to submit briefs asking whether it needs to decide all the issues in the case if it remands the case to the FWS to comply with NEPA or ESA. The NAM's brief, filed June 3, 2011, supported the Fish & Wildlife Service's view that the rule complies with all relevant statutes, but if not, the appropriate remedy is to send the case back to the agency for further action without throwing out the current version. Otherwise, thousands of otherwise lawful activities outside the polar bear's current range would be called into question and possibly generate lawsuits, unnecessary administrative actions and delays, and potential liability. There are many actions that FWS could take that would address judicial concerns about its actions, such as providing further reasons or further NEPA analysis.

On June 30, District Judge Sullivan affirmed the legality of FWS's listing of the polar bear as a "threatened species" under the ESA.

On Oct. 17 and Nov. 18, the judge upheld the final rule under the Endangered Species Act, vacated the final rule and reinstated the Interim Final 4(d) Rule. He remanded the rule to FWS to conduct its NEPA review and to publish a final Environmental Assessment by December 6, 2012. The court ruled that the ESA does not require FWS to regulate greenhouse gases, and that the Service had a rational basis for its decision, despite the fact that it may limit the ability of environmental groups to sue greenhouse gas emitters under the ESA.

When the EPA unilaterally revoked a pesticide tolerance under the Federal Food, Drug and Cosmetic Act (FFDCA), it arguably violated the right of pesticide manufacturers to an adjudicatory hearing. The action effectively banned the pesticide, and whether there is a right to a hearing in such circumstances has ramifications for pharmaceuticals, medical devices, food and beverages and certain consumer products as well.

Hearings are required whenever there are material issues of fact that are disputed between the government and the manufacturer. Despite four decades of safe product use in this case, EPA made changes in its risk assessment assumptions without providing a hearing. The D.C. Circuit deferred to EPA's decision, and the case was appealed to the Supreme Court.

The NAM and other groups filed an amicus brief 3/18/11 urging the Supreme Court to review this case. We argued that administrative agency hearings before a neutral factfinder are essential to due process, and that the lower court's ruling contravenes the FFDCA's hearing requirements. American industry relies on hearing rights, and the ruling in this case could affect not only rights under this statute, but also under statutes and regulations such as those covering packaging (Fair Packaging and Labeling Act), seabed mining (National Oceanic and Atmospheric Administration regulations), the importation or exportation of natural gas (Department of Energy regulations), tax levies on property (IRS regulations), and air carrier agreements (Department of Transportation rules).

On May 31, 2011, the Court declined to hear the appeal, leaving the lower court's decision in place.

On January 5, 2010, EPA published guidance to the states that allowed them to waive fees under Section 185 of the Clean Air Act relating to compliance with ozone emissions regulations. The guidance assisted states in preparing their own State Implementation Plans. It allowed states to either use the Section 185 fee program or "an equivalent alternative program" that is "consistent with the principles of section 172(e)" of the Clean Air Act.

NRDC sued EPA in March to argue that EPA's action allowing an equivalent, alternative program was arbitrary and capricious, and that allowing fee waivers if an ozone nonattainment area meets an 8-hour testing standard instead of a 1-hour standard was also improper. An 8-hour standard is more protective of the environment than a 1-hour standard.

In April, the NAM and 4 other business groups moved to intervene in this suit in support of EPA. That motion was granted. The case affects fees that were then set at $8,766 per ton of volatile organic compounds and nitrogen oxides emitted above a baseline amount from major stationary sources within areas of the country that are classified as severe or extreme nonattainment areas.

The NAM and other intervenors filed a brief on Jan. 31, 2011, arguing that EPA's interpretation is reasonable and consistent with congressional intent. It is important that states have the flexibility to design equivalent alternative programs that do not unfairly and inappropriately penalize well-controlled major stationary sources of ozone. Companies that have already dramatically reduced ozone emissions are unable to make further reductions without a harmful drop in productivity, and states should be able to develop alternative programs that focus on sources that are better able to achieve further reductions.

On July 1, the court rejected EPA's arguments that the plaintiffs lacked standing, that the Guidance did not qualify as final agency action, and the plaintiffs' claims were unripe for judicial review. It then ruled that the Guidance qualified as a legislative rule that EPA was required to issue through notice-and-comment rulemaking, and that one of its features -- the "attainment alternative" -- violated the plain language of the Clean Air Act. The court vacated the EPA's guidance and ruled that it could not offer an alternative that allows violations of the old 1-hour standard to continue. The law does not allow EPA to retreat from requirements it sets that prove to be too stringent and unnecessary to protect public health, and EPA must go back to Congress if it wants to do so.

The NAM is part of the SSM Coalition, named for EPA's new Clean Air Act regulations governing special circumstances often present during startup, shutdown or malfunction (SSM) of process equipment or pollution control equipment. On Jan. 4, 2011, the Coalition moved to file an amicus brief in litigation brought by the Portland Cement Association which challenges 2 EPA regulations governing Portland Cement plants. Our particular interest is the rule which establishes national emission standards for hazardous air pollutants (NESHAPs) under Section 112 of the Act.

EPA's new approach to establishing NESHAPs and its novel interpretations of Section 112 apply not only to the portland cement case, but it plans to adopt similar requirements for a variety of other sectors, including chemical plants, pulp and paper mills, steel pickling operations and wood furniture manufacturing.

The court granted permission to file an amicus brief, and we did so on May 23, 2011. The brief argued that EPA's MACT standard cannot be met by any existing facility and that EPA's standard does not satisfy the statutory requirement that it be achievable.

We also argued that EPA did not justify its decision to no longer recognize the special circumstances that arise during equipment malfunctions. Reasonable performance standards should recognize that sudden, unexpected failures of a manufacturing process or pollution control technology are not part of a source's normal operating mode, and should not be subject to harsh EPA penalties when they occur. EPA could have considered alternatives, such as work practice standards, that would address deviations from normally achievable emissions standards that may occur during periods of malfunction.

Finally, we argued that EPA should have recognized that differences in the source of raw materials makes compliance with a uniform national MACT standard difficult or impossible. It was arbitrary and capricious for EPA fail to make allowances for emissions based on the sources of supply.

On Dec. 9, 2011, the court remanded the NESHAP rule to EPA for reconsideration, but rejected all other issues that challenged EPA's actions.

For many government projects involving manufacturers, the National Environmental Policy Act requires federal agencies to evaluate the environmental impact of their actions, and these evaluations are increasingly challenged in court by environmental groups. In such litigation, courts usually allow manufacturers to intervene in the suits to help defend the agency’s actions and to help the court understand the impact of the case on their business. If environmental analyses are deficient, the projects cannot proceed.

This case involves a Ninth Circuit procedure that generally bars such intervention. The practice, informally known as the “federal defendant rule,” is based on the premise that only the federal government can be held liable for failing to perform environmental assessments, and that private parties do not have a significant protectable interest in the litigation.

The NAM and other groups filed an amicus brief 10/21/2010 arguing that the rule should be abandoned. Private parties clearly have a substantial interest in defending agency actions under NEPA, and Federal Rules of Civil Procedure 24(a) allows such a party to intervene. We cited many examples where private parties have such interests, including development projects that involve work in wetlands, the construction of natural gas pipelines or nuclear power plants, and the development of genetically engineered crops.

Our concern is not just about the application of the federal defendant rule to projects subject to NEPA, but also to the fact that it has been extended to other statutes, including the Endangered Species Act, the National Forest Management Act, and the Plant Protection Act. Intervention should be allowed to parties with significant interests in the outcome of such litigation. Often, private parties have massive investments at stake.

On 1/14/2011, the Ninth Circuit rejected the federal defendant rule and said that lower courts should not automatically reject non-federal parties from intervening in litigation at the merits stage, or liability phase, of a law suit. Instead, courts should consider whether the party has a legally protectable interest in the litigation and a connection between that interest and the claims in the case. The decision was en banc, involving 11 of the judges in the Ninth Circuit, and provides great assurance that the federal defendant rule will no longer be used in that circuit. Thirty-seven amicus groups urged this result, and only one other federal circuit court of appeals hangs on to the federal defendant rule.

The Department of the Interior approved an exploratory oil and gas drilling permit in the Beaufort Sea north of Alaska that was then challenged by various groups. The Department conducts a 4-stage process: (1) preparing a five-year leasing program, (2) selling leases, (3) permitting exploration in the leased regions, and (4) allowing development and production in the leased region. This challenge involved the exploration phase, and came after the Department had prepared a 1,001-page environmental impact statement in the preparation phase, a 4-volume environmental impact statement in the sales phase, and a 109-page environmental assessement of the exploration plan. Finding that the exploration would cause no significant impact on the environment, it approved the plan.

The NAM joined with other business groups in filing an amicus brief urging the federal court not to block the exploratory drilling. In light of the massive investments needed and already made in Outer Continental Shelf (OCS) development, and the shortness of time during the Alaskan summer, it was important that exploratory drilling not be disrupted by this litigation. Congress intended to promote the "swift, orderly and efficient exploration of our almost untapped domestic oil and gas resources in the Outer Continental Shelf," which is predicted to account for more than 40% of domestic oil production and 25% of natural gas production by 2012. Allowing exploratory drilling is an important step in the process of utilizing the OCS to move toward greater energy self-sufficiency, to provide economic stimulation, to improve national security, to maintain a favorable balance of payments in world trade, and to create jobs.

We also argued that an environmental impact statement is not required for an exploration plan, based upon the fact that an EIS was completed at an earlier stage.

On April 7, the NAM filed another amicus brief on the merits, making many of the same points previously made. On May 13, the court ruled that the Minerals Management Service met its obligations to take a "hard look at the consequences of its actions" and to provide a "convincing statement of reasons to explain why a project's impacts are insignificant." The court found that the agency's decision was supported by substantial evidence on the record and that it did not act arbitrarily.

The NAM and other organizations supported an appeal of an adverse decision by the U.S. Court of Appeals for the Fifth Circuit in a global warming public nuisance case. The plaintiffs, Mississippi residents and property owners, alleged that the emissions from more than 150 energy and manufacturing companies increased global warming and contributed to the severity of damages resulting from Hurricane Katrina. Our brief in support of the appeal argued that the plaintiffs' theory of liability would dramatically expand tort law beyond anything ever recognized because of the tenuous link between the alleged conduct and the alleged harm. In addition, this case involves a complex regulatory matter requiring the balancing of economic, environmental and international interests, and is constitutionally the domain of the political branches of government, not the courts.

The trial court had dismissed the case on these grounds, but a three-judge panel of the Fifth Circuit reversed, allowing the case to proceed. The NAM and the defendants wanted all the judges of the Fifth Circuit to review this ruling. That court did agree to review the 3-judge ruling, and arguments were scheduled for May 24, 2010.

On May 10, the NAM filed an additional brief arguing to a larger group of judges that the goal of this lawsuit is less to obtain compensation than to achieve the regulation of greenhouse gas emissions through litigation. We described how plaintiffs have tried to define a "nuisance" broadly to encompass the kind of claims that have largely been rejected by other courts. In addition, these kinds of political questions should be handled as a public policy debate, not as an adversarial proceeding in court.

Subsequently, the court announced that another judge had been recused from the case, destroying the quorum. On May 28, the court dismissed the appeal, and since it had previously vacated the 3-judge panel's ruling, the trial court's decision dismissing the lawsuit stands. This very unusual procedural development means that the appellate ruling that the NAM opposed was nullified without a formal opinion from a majority of the judges. The case was appealed to the Supreme Court, which declined to review it.

The plaintiffs later filed a similar suit, but the district court dismissed it because the claims had already been dismissed in the first case. In addition, the judge found that the parties had no standing to sue, since they cannot show a sufficient connection between the defendants' emissions and the plaintiffs' property damage. The court also found the claims non-justiciable political questions that have no "judicially discoverable and manageable standards for resolving" them, and because these policy determinations are entrusted to the EPA.

New York City adopted a very strict electronic waste collection law that mandates manufacturers of computers, monitors, televisions, laptops, portable digital music players and other equipment to set up door-to-door collection programs and collect a prescribed amount of discarded products every year, or pay a stiff fine. The law also imposed retroactive liability for products already sold, and requires manufacturers to pick up products made by other manufacturers. Only manufacturers are held liable; distributors, retailers, consumers, and the City of New York are not responsible for sharing in the cost of this waste collection program.

The Consumer Electronics Association and the Information Technology Industry Council sued the city, and the NAM put together a coalition of business groups to file an amicus brief in support of a motion for a preliminary injunction against the law. Our brief warned that the proliferation of state and local laws such as New York City's E-Waste law would impose a severe burden on manufacturers in violation of the Commerce Clause of the Constitution, in part because it would shift costs that should properly be borne by the city's own residents and taxpayers to out-of-state manufacturers. The law could disrupt and discourage voluntary industry efforts, and penalizes companies that have no control over consumer decisions regarding the disposal of their products.

In many ways New York's law is much different from other local and state laws, and the NAM is concerned that many products other than consumer electronic products are being targeted for similar treatment. This is a long-term issue that will be addressed in a variety of ways, and the NAM will be active in helping to develop reasonable solutions.

Late in May, New York State passed a new electronics recycling law that preempts all local regulations like New York City's. On June 28, 2010, the court approved a settlement agreement dismissing the litigation. The parties agreed to work together to develop an accessible system to collect used electronics in New York City.

When EPA determines that an environmental cleanup is required at a contaminated site, it has three options: (1) conduct the cleanup itself and file suit to recover the costs, (2) get a court order, or (3) issue a Unilateral Administrative Order (UAO) compelling a potentially responsible party to undertake a specified action. This case involves the constitutionality of UAOs, which are issued without any right to a hearing prior to their issuance.

The NAM filed an amicus brief supporting GE in this case, arguing that such orders constitute immediate and substantial deprivations of property without any opportunity for a pre-deprivation hearing before a neutral decision-maker. The lower court improperly found that the cost to EPA of providing a hearing to be substantial (if all UAOs are challenged), but the court did not consider the cumulative effect of UAOs on business in the balance. We also questioned the court's ruling that constitutional rights are less where the company has not shown that EPA's administrative procedure result in an unacceptable rate of error. We argued that no case requires a company to show that an agency has erred on the merits of a case in order to establish a due process violation. Furthermore, many potential defendants do not have substantial resources to reallocate from job creation, product development or other productive uses in order to vindicate their constitutional rights.

On June 29, 2010, the court affirmed the lower court's ruling, finding that manufacturers have the option of refusing to comply with a UAO, thus forcing the EPA to go to court to enforce the order. It also did not feel that the losses experienced by a company subjected to potentially improper UAOs (stock declines, loss of brand value or increasing costs of financing) were enough to constitute violations of due process.

Specifically, it ruled that a company that refuses to comply with a UAO has several safeguards under the law: a court must find (1) that the UAO was proper, (2) that the company "willfully" failed to comply "without sufficient cause," and (3) that, in the court's discretion, fines and treble damages are appropriate. The company has protections if it reasonably believes the UAO is improper.

On March 31 and April 9, 2010, the EPA issued permits for exploratory oil and gas drilling operations in the Chukchi and Beaufort Seas north of Alaska. Various environmental groups challenged the permits before EPA's Environmental Appeals Board, arguing that carbon dioxide that will be emitted during the exploration is currently subject to regulation, despite EPA's conclusion that greenhouse gases will not be subject to regulation until January 2, 2011, when the motor vehicle rule takes effect.

The NAM, American Petroleum Institute and Independent Petroleum Association of America filed an amicus brief 6/25/2010 arguing that challenges to EPA's regulatory decisions regarding whether to regulate greenhouse gases should be directed to those notice-and-comment rulemakings, not raised in the context of permit decisions. The challengers should either petition EPA for reconsideration of its "subject to regulation" ruling, or go to court to litigate over that regulation. The Environmental Appeals Board does not have the legal authority to review EPA regulations, but may only determine a challenged permit's compliance with the Clean Air Act and applicable regulations.

In December, 2010, the Appeals Board invalidated the permits and sent them back to the EPA, which granted them in September, 2011.

A federal judge imposed strict emissions controls on TVA power plants in Tennessee and Alabama based on a finding that the plants created a "public nuisance" in North Carolina under state law. The controls went far beyond state and federal emissions controls.

On August 18, 2009, the NAM and other business groups supported TVA's appeal of this ruling to the Fourth Circuit, arguing that the state claims are preempted by the comprehensive interstate air pollution control scheme of the Clean Air Act, and that virtually any source of emissions in the country could be subjected to arbitrary case-by-case claims that they contribute to a public nuisance. The EPA established several major programs that already address interstate pollution, including the Clean Air Interstate Rule, the Nitrogen Oxide Budget Trading Program, the acid rain rules, the regional haze rules and the rules requiring permits for emissions. The lawsuit also amounts to a collateral attack on the national ambient air quality standards for particulate matter and ozone.

This litigation is similar to that brought by various states against 5 major electric utilities and recently decided by the Second Circuit. See Connecticut v. American Electric Power. Such litigation is a dangerous threat because it not only interferes with the uniform regulation of emissions but it also expands the law of public nuisance in a way that could be used against many other industries.

On July 26, 2010, the Fourth Circuit overturned the district court, ruling that Congress is the policymaking branch of government responsible for setting national standards, and that public nuisance law does not encompass an activity expressly permitted and extensively regulated by both federal and state government. It also ruled that one state is not able to apply its home state law to activities occurring in another state.

The court's opinion highlights the chief problem created by this kind of litigation: "To replace duly promulgated ambient air quality standards with standards whose content must await the uncertain twists and turns of litigation will leave whole states and industries at sea and potentially expose them to a welter of conflicting court orders across the country." In addition, it ruled that, "An activity that is explicitly licensed and allowed by Tennessee law cannot be a public nuisance." This decision is an important milestone in our fight against the use of expansive and unwarranted legal theories by trial lawyers against manufacturers.

Please refer to the summary of the Alaska Eskimo Whaling Comm'n v. Salazar case.

Two judges in the Ninth Circuit issued an overly strict interpretation that requires companies wanting to drill for oil in the waters off the north coast of Alaska to perform studies under NEPA, the National Environmental Policy Act, that examine very detailed effects of the drilling configuration sought to be installed. Such studies cannot be performed without conducting the kind of full-scale test that would require a permit, a Catch-22.

The NAM joined with the Mountain States Legal Foundation and the Chamber of Commerce in an amicus brief urging further review of this decision by a larger group of Ninth Circuit judges. We argued that there should be a "full and fair discussion" of environmental impacts, which is enough to constitute a "hard look" to satisfy NEPA, and that the new, tougher standard adopted by 2 of the 3 judges in this case went too far.

Facilitating oil exploration and development in Alaska is needed to increase America's access to domestic sources of reliable energy. It is part of the NAM's comprehensive energy strategy to adequately address our nation’s energy needs.

In an order dated March 6, 2009, the Ninth Circuit withdrew the 3-judge opinion and planned to issue a new one. However, Shell withdrew its drilling plan in May, 2009, and submitted a new scaled-back proposal for the 2010 season. The court dismissed the case as moot.

The NAM is part of the Fine Particulate Matter Petitioners Group, which filed a petition for review in the D.C. Circuit of a final EPA regulation published in October, 2006, entitled "National Ambient Air Quality Standards for Particulate Matter." This case involves stringent new EPA air quality standards, which industry and agricultural groups say go too far and environmental groups and states say are not strict enough.

The regulation applies both to fine particles (generally smaller than 2.5 micrometers in diameter) and to larger particles (less than 10 micrometers). It retains an annual fine particle standard of 15 micrograms per cubic meter, and ratchets down the daily standard from 65 to 35 micrograms per cubic meter. It retains the 150 micrograms level for daily exposure to larger particles. The agriculture and mining industries are not exempt.

The new standard is expected to increase the number of nonattainment areas around the country significantly. Our challenge focused primarily on the fine particle portion of the rule.

Also included in the Fine Particulate Matter Petitioners Group are the American Coke & Coal Chemicals Institute, the American Forest & Paper Association, the American Iron & Steel Institute, the Chamber of Commerce, the Corn Refiners Association, the National Cotton Council of America, the National Oilseed Processors Association and the Portland Cement Association. Our petition was consolidated with others from the American Lung Association and other environmental groups, the National Mining Association, the National Cattlemen's Beef Association, 13 states, the Agricultural Retailers Association, the Utility Air Regulatory Group and others.

On Jan. 29, 2008, we filed a brief supporting EPA's decision to keep the fine particulate matter standard at 15 micrograms per cubic meter. It properly kept the limit at 15 because the risk attributed to that level of ambient exposure has stayed the same or decreased since EPA established that standard in 1997. EPA also properly set the secondary fine particulate matter standard at a level identical to the primary standards, providing increased visibility protection and providing the requisite level of public welfare protection.

We opposed a challenge to the standard that argued the EPA should have adopted recommendations of the Clean Air Scientific Advisory Committee (CASAC), because the Clean Air Act only allows that group to recommend revisions and the ultimate decision is in the discretion of the EPA Administrator.

On Feb. 24, 2009, the D.C. Circuit remanded the fine particulate standard to the EPA, as well as the EPA's decision to equate the primary and secondary fine particle standards, but upheld the coarse particulate standard. The court ruled that "the EPA did not adequately explain why an annual level of 15 μg/m3 is sufficient to protect the public health while providing an adequate margin of safety from short-term exposures and from morbidity affecting vulnerable subpopulations." It noted in particular three short-term studies that the EPA did not adequately explain away. During the remand, EPA's rule will remain in effect. It also found that EPA acted unlawfully when it failed to determine what level of visibility protection was needed to protect the public welfare. EPA's failure to set a target level of visibility was fatal to the standard it set.

With respect to an industry challenge to the regulation of coarse particulate matter, the court said that EPA need not wait for conclusive evidence of adverse health effects before regulating. It rejected the challenge and upheld this portion of EPA's regulation.

On May 15, 2008, the Department of the Interior issued an Interim Final Special Rule designating the polar bear as threatened under the Endangered Species Act, based on its determination that global climate change, resulting from increased concentrations of greenhouse gases in the atmosphere, threatened to injure the bears' habitat by reducing polar ice. As part of this rule, the Department provided an exemption for greenhouse gas emissions, since they are part of a worldwide phenomenon that cannot be traced to particular activities in particular locations affecting the bears.

This exemption applied to greenhouse gas emissions in all states except Alaska. On August 27, the NAM joined with the American Petroleum Institute, the U.S. Chamber of Commerce, the National Mining Association and the American Iron and Steel Institute in filing a complaint challenging the Department's omission of Alaska from the exemption. Manufacturing and other business operations in Alaska that may produce greenhouse gases should not be treated differently than those of companies in the other 49 states. This "Alaska Gap" exposed Alaskan operations to increased permitting burdens and/or the risk of enforcement by government authorities and citizen suits.

Our lawsuit challenged the Alaska Gap as arbitrary and capricious, since the best scientific data in the rulemaking record do not demonstrate enough of a connection between specific actions resulting in emissions and an effect on the polar bear.

The NAM supported the exemption for all states from permitting for greenhouse gas emissions that might affect polar bear habitat, not just every one but Alaska. The NAM was not challenging the decision to designate the polar bear as a threatened species.

On December 16, 2008, the Department of the Interior amended the rule to eliminate the "Alaska gap" carve-out provision, but implemented a more narrow carve-out. The business groups decided not to challenge the more narrow carve-out, and on April 6, 2009, stipulated that our complaint could be dismissed. In the stipulation order, the court recognized that the business groups were Defendant-Intervenors in both the Center for Biological Diversity case and the Defenders of Wildlife case, which involve other issues affecting polar bears. See the Center for Biological Diversitysummary for details on these combined cases.

This case was consolidated on appeal with Shell Oil Co. v. United States. Click here for a summary of the two cases. The NAM filed two amicus briefs in these cases.

The NAM joined with 10 other major business groups to urge the Second Circuit to reject lawsuits brought by 8 states against 6 major electric power utility companies over global warming. The states claim that the utilities, by emitting carbon dioxide from the process of burning fuel to produce electricity, contribute to global warming and create a public nuisance in their states. Our brief argued, and the lower court judge found, that this issue is a political question unsuitable for resolution in the courts. We warned that this suit, if allowed, would open the door to nuisance suits targeting any activity that uses fossil fuel for energy, such as companies using a fleet of cars or trucks, and that global warming and energy usage are international and national issues that are not amenable to solution through the case-by-case, patchwork approach of nuisance suits.

This suit basically seeks to have the judiciary decide how fossil fuel energy should be used in this country. This issue is a political question that should be decided only after the kind of full debate and public participation that the political, legislative and administrative processes of government can provide. Energy-intensive industries include aluminum, chemicals, forest products, glass, metal casting, mining, petroleum refining and steel. Even farming and road building could be subject to nuisance suits. A second brief filed in the Open Space Institute case is virtually identical. See also: Open Space Institute, Inc. v. American Electric Power Co.

On Sept. 21, 2009, two judges of the Second Circuit issued an opinion reversing the trial court and sending the case back for trial. They ruled that the claims are not political questions, that the plaintiffs have standing, and that they have stated claims under the federal common law of nuisance. The court found that a decision by a single federal court concerning a common law nuisance action brought by domestic plaintiffs against domestic companies for domestic conduct does not establish a national or international emissions policy. The court said that the relief sought in this case "applies in only the most tangential and attenuated way to the expansive domestic and foreign policy issues raised by Defendants." It said that well-settled principles of tort and public nuisance law provide guidance on how to handle the case. Until Congress steps in to preempt the field of the federal common law of nuisance, courts can decide cases involving such claims. The court found that there is no unified U.S. policy on greenhouse gas emissions, and that a court case would not interfere.

With respect to standing, the court said that at this point in the litigation the plaintiffs "need not present scientific evidence to prove that they face injury or increased risk of injury, that Defendants' emissions cause their injuries, or that the remedy they seek will redress those injuries." It is enough that the states have an interest in safeguarding the public health and their own resources. The court found that the plaintiffs sufficiently alleged that their claimed injuries (global warming) are "fairly traceable" to the defendants' emissions.

The judges also ruled that private parties are allowed to bring federal common law public nuisance suits, although the case precedent for this is limited. In addition, federal environmental law does not displace this common law nuisance action, since neither Congress nor the EPA has yet regulated greenhouse gases "in any real way."

This litigation will now continue, but the case is being appealed to the Supreme Court. Major producers of electricity must go through lengthy and expensive governmental emission permitting procedures, and even when fully approved, plants will still be subject to suits challenging their emissions. This is an untenable situation that will lead to increased costs, conflicting court judgments and more expensive energy for manufacturers and the American public.

The NAM filed a Request for Correction under the Information Quality Act asking that EPA correct scientific errors in a package of documents related to its proposed revision of the National Ambient Air Quality Standard for ozone. See summary linked below.

EPA rejected, disagreed with, or otherwise denied every information quality error described in the NAM's request for correction. Consequently, on Oct. 14, 2008, the NAM submitted a 160-page Request for Reconsideration detailing a variety of problems with the EPA's studies and processes. Many of the epidemiological studies EPA staff found persuasive used research designs that were known at the time to be demonstrably substandard. Staff relied on complex statistical methods to coax data into revealing effects from ozone so small that humans cannot even recognize experiencing them. Finally, EPA staff insisted that certain studies provide valid and reliable evidence of respiratory health effects from ozone even though they rejected these same studies in their July 2007 draft Integrated Science Assessment for Oxides of Nitrogen.

The appeal seeks more cogent answers than EPA provided in its response to the Request for Correction. The document also identifies a number of process changes that are necessary to ensure that future NAAQS reviews fully and consistently adhere to the Agency's Information Quality Guidelines and the Information Quality Act.

On Jan. 15, 2009, EPA responded by "deferring consideration" of our request, pending resolution of the challenge to the ozone NAAQS rule in the U.S. Court of Appeals for the D.C. Circuit (see link below). NAM may resubmit this request after the conclusion of that litigation.

This is a consolidated case with Connecticut v. American Electric Power Co. Click here for the full summary.

The Second Circuit ruled that EPA could not use cost-benefit analysis when implementing certain provisions of the Clean Water Act. The regulations at issue address existing power plants, but the court's ruling directly jeopardized favorable regulations governing all other users of cooling water, such as in the steel, chemical, paper and petroleum industries. Indeed, all consumers of electric power are likely to be impacted by an increase in the cost of electricity.

The NAM joined with four other organizations in an amicus brief urging the Supreme Court to hear this appeal. The issue involves Section 316(b) of the Clean Water Act, which establishes requirements for cooling water intake structures at electric power plants, in order to minimize the impact of such structures on fish. The Second Circuit ruled that EPA choose the most effective technologies for minimizing the impact of these structures that the affected companies as a whole "can reasonably bear," without any consideration of the costs and benefits of that technology, unless two different technologies "produce essentially the same benefits."

The Second Circuit's ruling conflicted with that of another federal circuit as well as EPA's own interpretation of the statute. Our brief argued that this interpretation may affect thousands of industrial, commercial and institutional facilities that use cooling water. We also argued that the EPA acted within its authority to take into account "restoration measures" that enhance the numbers and conditions of the affected fish, but the Second Circuit rejected that as an acceptable method of minimizing the adverse impact of water intake structures on aquatic life. The operative statutory language is unclear and the EPA's interpretation is entitled to judicial deference.

Third, we argued that the Second Circuit's decision was based in part on its interpretation of Section 301 of the Clean Water Act, which governs wastewater treatment requirements. This erroneous interpretation had the potential to affect many more facilities than just the electric generating plants that were the subject of this case, and even many more than plants that have cooling water intake structures.

After the Supreme Court agreed to hear this appeal, along with Entergy Corp. v. EPA (No. 07-588) and Utility Water Act Group v. Riverkeeper (No. 07-597). We filed a brief on the merits of the legal issues on appeal on July 21, 2008.

On April 1 in a 6-3 decision, the Supreme Court held that EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards. Even though the legislation did not expressly provide for consideration of costs, it was within the EPA’s discretionary authority to do so, and the courts will uphold a reasonable exercise of that discretion.

The Ninth Circuit decided that a manufacturer of a hazardous substance is jointly and severally liable under CERCLA for any spill or misuse of the product by a third party after the substance has left the custody and control of the manufacturer. However, the product in question was sold as a useful commercial product to a third party, and not as hazardous waste. The seller relinquished control at the point of delivery, and the material subsequently leaked and contaminated some soil. The Ninth Circuit’s ruling means that a seller of a useful product that may be hazardous has actually “arranged for the disposal” of the product within the meaning of CERCLA, and is thus liable for the cleanup costs.

The Supreme Court reversed, on May 4, 2009. The plain meaning of the statute requires that a company should have had an intent to arrange for the disposal of a hazardous material to be found liable as an "arranger." The NAM's amicus brief urging the Court to review the case had made this same argument, as opposed to the Ninth Circuit's much looser test that imposed liability if disposal was merely a foreseeable byproduct of the transaction.

The Shell case was consolidated with Burlington N. & Santa Fe R.R. Co. v. United States, which raised an issue relating to the apportionment of responsibility to various parties under CERCLA. The Ninth Circuit ruled that it is possible to divide liability among various parties that may have contributed to the contamination, but that there was insufficient evidence to do so here; thus, both the railroad and Shell were held to be jointly and severally liable. The Supreme Court reversed this ruling as well, saying that the trial court correctly found that liability could be apportioned, and that the railroad was liable for 9% of the cleanup costs. It ruled that apportionment is appropriate when the evidence is sufficient to provide a reasonable basis to do so.

The NAM argued that the heightened evidentiary standards established by the Ninth Circuit for demonstrating that there is a basis for apportioning harm are inconsistent with the standards set forth in the Restatement (Second) of Torts and with the approach adopted by other circuit courts, which have applied the Restatement approach in the CERCLA context. Additionally, we contended that apportionment in this case would be consistent with the policies underlying CERCLA, especially when one considers that concerns about the potentially harsh impacts of joint and several liability led Congress to delete any specific reference to joint and several liability in the statute.

On March 21, the NAM joined with six other organizations in an amicus brief supporting EPA’s 2007 approval of a preconstruction permit for a new power plant in Utah. The Sierra Club appealed the approval, arguing that the EPA must limit carbon dioxide (CO₂) emissions in the permit.

Our brief argued that the EPA’s permitting process should not be turned into a regulatory tool to control CO₂ emissions. The EPA had already determined that CO₂ was not a regulated pollutant and thus did not need to be addressed within a preconstruction permit.

On June 16, the EAB issued an order requesting further briefing on whether carbon dioxide monitoring requirements are enforceable under the Clean Air Act, and on the effect of the Supreme Court's decision in Massachusetts v. EPA.

On September 12, the NAM and five other organizations filed a supplemental brief. First, we argued that CO₂ is not currently regulated under the Clean Air Act, as there is only monitoring of, not restrictions on emissions of, CO₂. Second, we argued that that the issues the EAB seems to be focusing on go beyond its authority, and that any expansion of the preconstruction permit program to greenhouse gases is a determination that should be made by the EPA Administrator, via rulemaking, or by Congress.

On Nov. 13, 2008, the Environmental Appeals Board rejected the Sierra Club's contention that permits must include "best available control technology" for carbon dioxide, but sent the case back to the EPA to reconsider whether to impose the requirement under its discretionary authority, and to develop an adequate record for its decision. It encouraged the EPA to consider whether the issue in this case should be resolved "in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18 that concluded that PSD permits do not need to include BACT limits for greenhouse gases. The Sierra Club is challenging that guidance. If they succeed, the number and type of facilities (e.g., any which emit certain levels of CO₂) requiring EPA permits would explode, resulting in an impassable regulatory gridlock that would overwhelm permitting authorities and bring new permits to a halt. Under such a scenario, even large department stores, schools, and medium-size office buildings would require Clean Air Act preconstruction permits in order to be built or expanded.

The NAM is a member of the CO₂ Litigation Group, which was an intervenor helping to defend EPA in this case. Massachusetts sought a court mandate to force EPA to determine that carbon dioxide is an air pollutant that contributes to air pollution "which may reasonably be anticipated to endanger public health or welfare."

We filed a brief 5/15/08 arguing that no such finding is required by the statute unless EPA decides to establish emission standards for new motor vehicles, nor is there any deadline for making such a determination. No clear statutory rights are being harmed by any delay by EPA, and EPA has announced an intention to begin a rulemaking later this spring anyway.

We argued that EPA must be able to consider this proposed rulemaking in the larger context of other regulatory obligations with respect to fuels used in motor vehicles and nonroad engines, as well as new or modified major stationary sources of emissions, comprising perhaps thousands of new facilities not currently subject to stringent Clean Air Act permit requirements.

Climate change from carbon dioxide must be addressed in a comprehensive way with input from the public through the legislative and regulatory processes, not through a judicial directive that truncates public debate.

On June 26, the court denied Massachusetts' petition without opinion, except for a statement by Judge Tatel concurring in part and dissenting in part. He would hold on to the case until EPA gives greater indication that it is moving forward with the regulation. The EPA announced in March that it would issue an Advance Notice of Proposed Rulemaking sometime in the future.

The National Association of Manufacturers submitted a formal request 10/9/07 to the U.S. Environmental Protection Agency asking that it correct scientific errors in a package of documents related to its proposed revision of the National Ambient Air Quality Standard for ozone. By law, these errors must be corrected to ensure and maximize the quality of scientific information disseminated by EPA and used for making regulatory decisions. Once these errors are corrected, the NAM is confident that EPA will have a much stronger scientific foundation for the final decision the agency will make on the ozone standard in March 2008.

The NAM’s petition identified several important information quality errors, such as:

• EPA’s risk assessment isn’t transparent.

EPA did not fully disclose analyses it recently performed and inserted at the last minute into the administrative record for the proposed revised standard. The Agency is obligated by law to ”show its work.”

• EPA’s risk estimates are purposefully exaggerated.

EPA misreported or exaggerated the results of the studies it relied on, and ignored studies that had found no health effects from ozone levels below the current standard. EPA knowingly used assumptions and models that give inflated estimates of health risks. These practices are prohibited under federal information quality standards that EPA has adopted.

• EPA’s risk assessment did not follow technical recommendations made by the National Academy of Sciences.

Since the Clean Air Act was last amended in 1990, the Academy has issued a series of reports providing technical advice concerning how to estimate and portray the risks posed by air pollution. Among other things, the Academy has pressed EPA to be more candid about the uncertainties in its estimates and predictions. EPA has ignored most of these recommendations.

The practical effect of these errors is that the public is not accurately informed about what the science says about ozone air pollution, nor is it aware just how uncertain EPA’s risk estimates really are. Through our petition, the NAM expects that EPA will correct these errors as the law requires, and provide the public scientific information that is accurate, reliable, and unbiased, and presented in an accurate, clear, complete, and unbiased manner.

In March, 2008, the EPA indirectly responded to our criticisms as part of its general response to significant public comments. We were dissapointed that the EPA did not adhere to the substantive elements in its Information Quality Guidelines, especially in not acknowledging the validity of any of our complaints related to the covered information contained in its proposal and supporting documents.

Consequently, we filed a Request for Reconsideration of the EPA's denial of our Information Quality Act petition. See link below for further developments.

After the Environmental Protection Agency issued a Unilateral Administrative Order to a Canadian company to conduct a study on contamination of the Columbia River in this country from its smelter in Canada, an Indian tribe sued to enforce the order. The company argued that the EPA does not have jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the U.S. federal district court ruled otherwise. The company appealed, and the Ninth Circuit affirmed, ruling 7/3/06 that the EPA’s order only applied to a “facility,” as it’s defined in CERCLA, within the territorial boundaries of the United States. Even though the smelter was located in Canada, the definition of a facility under CERCLA is an area where a hazardous substance has been deposited or otherwise comes to be located. This is a very broad definition of facility that subjects foreign companies to liability for pollution in the United States.

The court also ruled that the slag located in the United States was leaching hazardous substances, thus satisfying the legal requirement for liability that there be a “release” from the facility into the environment. EPA’s jurisdiction did not extend to the smelter across the border, but does cover the underwater facility and hazardous releases in the United States.

The NAM joined with the National Mining Association in 2 briefs supporting Teck Cominco’s appeal and petition for rehearing in 2005 and 2006. We argued that CERCLA applies only within this country unless Congress clearly expresses an intent to apply it extraterritorially, which it did not. These kinds of disputes are quintessentially an international concern, not for unilateral action by one country's EPA. Private litigation upsets the resolution of such disputes through diplomatic means, or through the long-standing model of an arbitration group that was specifically established for the smelter in the 1930s. Allowing such litigation in U.S. courts opens them up to worldwide claims, particularly as environmental science improves, and could subject U.S. firms to retaliatory litigation abroad, imposing multiple and conflicting standards on environmental behavior.

The case was appealed to the Supreme Court. On May 2, 2007, the NAM and the National Mining Association filed an amicus brief urging the Court to take the case. We argued that the lower court's decision invites retaliation against American businesses and fosters uncertainty and discord for many industries with respect to the definition of "arranger liability." We argued that arranger liability under CERCLA applies when a company owns hazardous material and arranges with a third party for its disposal or treatment, not when the company does it itself.

On Jan. 7, 2008, the Supreme Court declined to review this appeal. The United States Government had earlier filed a brief opposing the appeal.

The NAM joined other groups 12/27/06 in an amicus brief urging the Supreme Court to hear an appeal by DuPont involving the costs of cleaning up contaminated Superfund sites. The right to collect a fair share of the cleanup costs from other parties, including governments, who are responsible for contributing to the hazardous wastes in Superfund sites, is critically important to manufacturers and to the cleanup process. Our brief urges the Court to review a Third Circuit decision that denied the right of a manufacturer to seek contributions from other parties that helped create the problem.

We argue that CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, was enacted to facilitate prompt and effective cleanup of contaminated sites, and a right of contribution is integral to achieving this goal. The Third Circuit's decision will impede the national effort to clean up sites, will unfairly burden a few private parties, and will discourage or delay the redevelopment of many of our nation's cities. The court's decision is also in direct conflict with decisions by unanimous panels of the Second and Eighth Circuits.

The brief describes four important categories of cleanups that will be discouraged and/or delayed by the Third Circuit's ruling: (1) thousands of sites polluted by the federal government, (2) thousands of sites subject to corrective action under Subtitle C of the Resource Conservation and Recovery Act (RCRA), (3) Superfund sites, and (4) thousands of brownfields sites whose only realistic potential for cleanup is voluntary action by responsible parties.

The NAM joined with the Superfund Settlements Project, the American Chemistry Council, the American Petroleum Institute and the United States Conference of Mayors in the brief.

On 6/18/07, the Court granted the petition, vacated the lower court's decision and sent the case back for reconsideration in light of its recent decision in United States v. Atlantic Research Corp. The lower court is expected to rule in favor of Dupont.

On April 2, 2007, the Supreme Court ruled unanimously that the definition of the word “modification” can be interpreted in different ways by the EPA under separate Clean Air Act enforcement regulations with different ways of implementation. It overturned a Fourth Circuit ruling that required EPA to conform the interpretation of “modification” in regulations for the Prevention of Significant Deterioration (PSD) to the interpretation of that word under the New Source Performance Standards (NSPS) regulations.

The NSPS regulations apply when a stationary source is modified so that its hourly emissions rate increases. The PSD regulations require a permit when a modification of a stationary source is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years.

The Supreme Court upheld EPA’s decision to impose permit requirements under the 1980 PSD regulations that may apply even though a change to a major stationary source does not increase an emitting unit's hourly emissions rate. It ruled that an enforcement court may not implicitly invalidate the 1980 PSD regulations unless it is shown that review of the underlying issue could not have been obtained in accordance with the normal Clean Air Act judicial review procedures.

In terms of impact, this ruling is limited to an interpretation of the 1980 PSD rules, which have since been amended in 2002. In the rule amendments, EPA clearly indicated that it would use for the future an annual emissions test for PSD and provided specific standards that govern application of that test. Thus, the potential scope of impact for this ruling is limited to enforcement for actions that may have occurred under the prior version of EPA's rules.

The NSR Manufacturers Roundtable, including the NAM, participated in this case in the Fourth Circuit and in the Supreme Court.

In a major 5-4 ruling, the Supreme Court decided 4/2/2007 that the EPA must reconsider its decision not to issue new motor vehicle emission standards under its authority under section 202(a)(1) of the Clean Air Act, relating to the regulation of air pollutants associated with global climate change. Under that section, the EPA Administrator must regulate air pollutants when, “in his judgment,” such pollutants “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). Several parties petitioned the EPA to set regulatory standards for air pollutants associated with climate change. The EPA denied the petition, concluding that it lacked authority to do so, and that, even if it had authority, it would deny the petition based on various policy considerations not expressly addressed in the statute, including scientific uncertainties, the inefficiency of piecemeal approaches to the climate change issue, and foreign policy concerns.

The D.C. Circuit upheld the EPA’s decision, but the Supreme Court reversed. The majority ruled that the 11 states that filed suit had standing to sue because the standing requirements for challenging agency action unlawfully withheld are not as strict as regular standing requirements. The states need only show that they have suffered a "concrete and particularized injury," but not that the injury is immediate or that a favorable decision will redress that injury. Because the states have a procedural right to protect their interests, they have standing "if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." It also ruled that states are entitled to special treatment because they have given up some of their sovereign powers to the federal government.

It ruled that Massachusetts will suffer injury to coastal land that it owns, and since EPA did not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, EPA's refusal to regulate such emissions contributes to that state's injuries. EPA cannot refuse to regulate just because auto emissions are such a small part of overall greenhouse gas emissions, since many regulations legitimately take incremental steps in addressing massive problems.

The Court held that an agency's denial of a petition for rulemaking is susceptible to "extremely limited" and "highly deferential" judicial review. It found that the plain language of the Clean Air Act defines "air pollutant" to include all airborne compounds of any kind, and regulating the quality of the air does not conflict with the Department of Transportation's authority to regulate automobile efficiency.

Finally, the Court ruled that the Clean Air Act requires EPA to form a judgment on whether greenhouse gases contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. Once it has found such endangerment, it has "significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies." To avoid having to impose some regulations, it must either determine that greenhouse gases do not contribute to climate change, or provide some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Thus, the Court left open the possibility that EPA could withhold regulation, but only if it grounds its reasons for inaction in the Clean Air Act.

Justices Roberts, Scalia, Thomas and Alito dissented in part because they felt the states did not have standing, and that the Court's new rule giving states preferential treatment has no basis in existing case law. The majority cited a 1907 case that did not involve standing and that neither the states nor any of the supporting briefs mentioned. The dissent argues that a particularized injury to Massachusetts has not been shown, since the affidavits in support of that claim suggest that land subsidence, a non-global-warming cause, is affecting Boston's rising sea level. Injury is not imminent or certainly impending, and a computer model's conceded average error rate is greater than or equal to the projected sea level rise. The alleged connection between the fractional amount of global emissions that might be limited with EPA standards and the loss of Massachusetts coastal land is far too speculative to establish causation. Furthermore, a regulation is not likely to redress Massachusetts' injury, since it will have no proven effect on the voluminous amount of greenhouse gases emitted elsewhere in the world. Referring to a 1973 decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), Chief Justice Roberts wrote, "Today's decision is SCRAP for a new generation."

A separate dissent written by Justice Scalia says there is no language in the Clean Air Act that requires EPA to make a judgment on greenhouse gases, and that the Act governs only air pollution, which EPA reasonably decided does not include carbon dioxide high in the atmosphere.

The NAM is part of the CO2 Coalition, which participated in this case in the D.C. Circuit and the Supreme Court. The decision granting standing to states to challenge federal agency action, or inaction, without the same restrictions as other plaintiffs could lead to increased litigation by the states against a variety of federal agency decisions.

The NAM joined with 4 other business groups in support of a petition for rehearing of an adverse decision by the Sixth Circuit involving how far into the future the EPA or a citizen may challenge in court alleged violations of preconstruction permits under the Clean Air Act. On 8/14/07, the petition was denied.

The statute of limitations for CAA enforcement is 5 years. However, the appeals court ruled that every day a facility operates without the best available control technology constitutes a discrete violation. It also ruled that TVA has an obligation to get a construction permit even after the construction has been completed. A dissenting judge felt that the obligation to get a permit can only be violated once, like a carpenter's contract to repair a roof. Even though there may be aftereffects in each case from the failure to do the original work properly, the violation occurred at one point in time, and only the harms occur later.

Our brief argues that the lawsuit involves factual inquiries that depend on substantial amounts of data, witness testimony and other documentary evidence that becomes stale if not litigated in a reasonable amount of time. An initial inquiry into whether a change made at a facility is a modification covered by the permit requirements involves a complex multi-step analysis, made on a case-by-case basis, based on data existing at the time of the modification. The purpose of a statute of limitations is to prevent vexatious litigation years after acts giving rise to the litigation occur. In any event, companies are still subject to ongoing regulatory requirements, because they are subject to operating permits. There is no allegation that an operating permit was violated in this case.

The NAM joined with the American Forest & Paper Association, American Petroleum Institute, Chamber of Commerce of the United States, Corn Refiners Association, Grocer Manufacturers of America and the Western States Petroleum Association in an environmental case involving waste containment ponds. The issue is whether a citizen's group can sue a company under the Clean Water Act for damages because the company did not have a permit to use a containment pond for salt processing residues at its salt-making facility in California. The Clean Water Act's jurisdiction extends only to "navigable waters" of the United States, and we argued that there is no jurisdiction over a containment pond that is not hydrologically connected to -- and has no impact on -- any navigable waterway. It is not enough that a pond simply be adjacent to or in proximity to waters of the United States -- there must be a more direct connection.

The Supreme Court's 2006 ruling in the Rapanos case was expected to offer some guidance, but it was a splintered decision.

On March 8, 2007, the Ninth Circuit overruled the lower court's decision. It deferred to the EPA's regulatory definition of "waters of the United States", which does not include waters that are simply adjacent to navigable waters. While wetlands that are adjacent to navigable waters are subject to Clean Water Act jurisdiction, other bodies of water, such as the waste collection pond in this case, are not. The court distinguished the Rapanos decision because it applies only to wetlands. Even if a party were permitted to show that there was some hydrological connection between the pond and navigable waters, the evidence was speculative or insubstantial in this case.

On Sept. 26, the NAM filed an amicus letter urging the California Supreme Court to review two issues in a case of subsurface trespass resulting from migration of wastewater and the subsequent alleged reduction of water quality in an aquifer. First, even though California has a three-year statute of limitations for actions against permanent trespass, the lower court ruled that this trespass was not permanent, but continuing. Our brief argues that such an interpretation improperly eliminates the statute of limitations defense in cases where subsurface water has been migrating for many years.

Second, even though California law is very clear on the measure of damages for a continuing trespass, providing that a plaintiff may recover “the value of the use of the property” that the defendant gained and the “reasonable cost of repair or restoration of the property to its original condition,” the court of appeals nonetheless allowed additional damages that may include profits enjoyed by the defendant that are directly linked to the trespass. Our brief argues that including profits in the calculation of damages overstates the benefit that a company obtains, with the proper measure of damages for “benefits obtained” being the costs that the company avoided by engaging in the challenged activity. That, combined with the actual damages resulting from the trespass, takes away all incentive for the trespass and provides more than full compensation to the plaintiff. Guidance from the California Supreme Court on both of these issues would substantially aid California landowners and businesses by verifying settled principles, eliminating uncertainty and a jackpot-justice approach to litigation, and satisfying the demands of due process to provide fair notice of the law of damages for trespass.

On Oct. 24, the California Supreme Court denied the petition for review.

This is the second time this case has been appealed to the Supreme Court. This time around, the NAM joined with the National Solid Waste Management Association and the American Trucking Associations to urge the Court to review an adverse ruling by the Second Circuit that would allow a municipality, county or state to impose flow-control restrictions on the interstate transportation of solid waste. Flow-control laws allow local jurisdictions to prop up their disposal facilities by preventing waste generated in the locality from being taken anywhere else. The 1994 Supreme Court decision in the Carbone case held that a town's law flow-control ordinance discriminated against interstate commerce. The Second Circuit in this case provided a blueprint for local governments to avoid the Carbone decision by vesting part of the ownership of private waste disposal facilities in a public entity.

Our amicus brief argued that this ruling would seriously disrupt the interstate market in solid waste disposal services, including recyclables, and it ignored the practical economic effect of the ordinance, which is the key determinant when analyzing issues of discrimination against interstate commerce.

On April 30, 2007, the Court affirmed the Second Circuit's ruling, 6 to 3. It held that the county's restrictions treat in-state and out-of-state private business interests equally, and the government has an interest different from and superior to that of private businesses, since government is responsible for protecting the health, safety and welfare of its citizens. The Court was reluctant to interfere with numerous state and local government initiatives undertaken in furtherance of their police power. In addition, most of the burden of the regulation falls on those who voted for the laws, and they can change them through the normal political process.

The decision gives state and local governments vast power to control the disposal of all wastes within their jurisdictions, even though it may be more expensive.

The NAM and five other associations filed an amicus brief 10/14/05 supporting an appeal of a Ninth Circuit ruling that allows California to demand detailed information from manufacturers about energy efficiency.  We argue that the California regulations are preempted by the Energy Policy and Conservation Act of 1975, which sets energy and water-use efficiency standards for appliances and expressly preempts any state regulation that “provides at any time for the disclosure of information with respect to any measure of energy consumption or water use” that differ from federal requirements.  California argues that the law only applies to disclosure of information to consumers and not to the state government itself.  Our brief argues that there is a split in the circuit courts, that there should be no presumption against preemption here, and that the issue is an important and recurring one appropriate for the Supreme Court to resolve.

On 6/19/06, the Court declined to hear this appeal.

The NAM, the American Chemistry Council, the American Forest and Paper Association and the American Petroleum Institute filed joint motions to intervene to help defend the EPA against two suits brought by the ALA and 3 environmental groups over some of its Clean Air Act rules. The rules relate to issues that were reconsidered by the EPA as a result of earlier litigation, and are entitled, “Nonattainment Major New Source Review Implementation Under 8-Hour Ozone National Ambient Air Quality Standard: Reconsideration,” and “Implementation of the 8-Hour Ozone National Ambient Air Quality Standard – Phase 1: Reconsideration.”

Industry supports the new rules because they provide reasonable answers to questions relating to the implementation of tougher clean air requirements. First, since the old system of measuring emissions has been revoked, the new rules do not mandate certain contingency measures if an area of the country does not meet those old standards. Second, even though the old standard has been revoked, portions of it remain in place and there are new ways to demonstrate compliance with the standard. Third, new source review permitting requirements will be triggered based on the new 8-hour standard, which generally will apply to fewer facilities.

For further details, see South Coast Air Quality Management District v. EPA.

The National Petrochemical & Refiners Association (NPRA) and the NAM 6/29/04 submitted to the EPA a Petition for Reconsideration of the final rule to implement the 8-hour ozone national ambient air quality standard (NAAQS) and the designations and classifications for the ozone standard. Industry is concerned that the timetable for certain facilities in nonattainment areas to come into compliance is too short. At least 15 regions of the country will need more time to come into compliance than is provided by the EPA.

Due in part to our efforts, the EPA reconsidered the issues before publishing its final rule. Industry supports the new rule because it provides reasonable answers to questions relating to the implementation of tougher clean air requirements.

For further details, see American Lung Association v. EPA.

The NAM joined with the American Chemistry Council, American Petroleum Institute, National Mining Association, the U.S. Chamber of Commerce, the U.S. Council for International Business and 5 other associations in an amicus brief 5/27/05 in the U.S. Court of Appeals for the 10th Circuit. We argued that the state of New Mexico may not seek money damages from companies involved in the clean-up of hazardous materials in the South Valley Superfund Site. The lower court had ruled that New Mexico did not prove that it would have used the water under the Superfund site, and therefore could not prove damages.

The NAM brief informed the court that New Mexico’s claim seeks double recovery. The companies worked together for nearly 15 years with the U.S. Environmental Protection Agency and the New Mexico Environmental Department to return water at the site to drinking water standards, yet were being sued to replace the resource that they cleaned up. Allowing such double recovery is a direct threat to the federal and state cleanup programs. To be successful, such cleanup efforts must have the maximum voluntary participation by the companies involved. It is unfair to allow the state with one hand agree to the clean-up plan and implementation at the site, and then have it turn around and sue for damages because it thinks the clean-up should have done more.

In addition, CERCLA (the Superfund law) provides a limited number of ways in which an EPA remediation remedy may be challenged in court. This is to help prevent time-consuming litigation that would hinder the prompt clean-up of Superfund sites. Furthermore, we argued that the state cannot claim damages for the lost use of the water if no one in fact ever suffered damages from not having the water available. Now that the water has been cleaned, it is available for future use. The state admits that the more than $1 billion in damages it seeks will not be used for water quality remediation.

The industrial community and natural resource trustees have been working toward increased cooperation and trust in the resolution of natural resource damage cases at individual sites, as well as to increase mutual understanding and certainty in the process as a whole. Claims like the one brought by the State of New Mexico have the potential to gravely set back this progress.

Attorneys general from 13 other states filed an amicus brief in support of New Mexico.

On October 31, 2006, the Tenth Circuit rejected New Mexico's challenge. It ruled that the state could not challenge CERCLA remediation efforts until they are completed, and seeking money damages does just that. It ruled that CERCLA preempts "any state remedy designed to achieve something other than the restoration, replacement or acquisition of the equivalent of a contaminated natural resource."

The state also has no claim for damages from the loss of water, since New Mexico is part of the Middle Rio Grande Administrative Area, which controls the use of water and substituted another well's water for the water temporarily lost to the clean-up effort. Thus, there was no net loss of water to Albuquerque.

The NAM is a member of the Equipment Replacement Rule Coalition, which filed a brief 12/9/05 in a suit brought by the State of New York against the EPA over the agency's 10/27/03 final rule titled "Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion." This rule governs the factors that determine whether companies must obtain EPA permits before replacing broken or deteriorating equipment at their industrial facilities. New York challenged the rule as too lenient. The Equipment Replacement Rule Coalition, comprising various trade associations, manufacturers and utilities, generally support the EPA's new rule.

Our brief on the merits argued that EPA has discretion under the Clean Air Act to issue the rule, and that major modifications are not any physical plant changes, but only those that increase an existing unit’s design capacity to emit.

On 3/17/06, the Court vacated the rule. It decided that the Clean Air Act’s permit requirements for “any physical change” do not allow the EPA to expand the category of projects that it views as “routine replacement.” The only exceptions are projects that do not result in emissions increases or that are de minimis. The decision leaves the existing Routine Maintenance, Repair and Replacement Exclusion in place.

After the Environmental Protection Agency issued a Unilateral Administrative Order to a Canadian company to conduct a study on contamination of the Columbia River in this country from its smelter in Canada, an Indian tribe sued to enforce the order. The company argued that the EPA does not have jurisdiction under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but the U.S. federal district court ruled otherwise. The company appealed, and the Ninth Circuit affirmed, ruling 7/3/06 that the EPA’s order only applied to a “facility,” as it’s defined in CERCLA, within the territorial boundaries of the United States. Even though the smelter was located in Canada, the definition of a facility under CERCLA is an area where a hazardous substance has been deposited or otherwise comes to be located. This is a very broad definition of facility that subjects foreign companies to liability for pollution in the United States.

The court also ruled that the slag located in the United States was leaching hazardous substances, thus satisfying the legal requirement for liability that there be a “release” from the facility into the environment. EPA’s jurisdiction did not extend to the smelter across the border, but does cover the underwater facility and hazardous releases in the United States.

The NAM joined with the National Mining Association supporting Teck Cominco’s appeal. In an amicus brief filed 6/13/05, we argued that CERCLA applies only within this country unless Congress clearly expresses an intent to apply it extraterritorially, which it did not. These kinds of disputes are quintessentially an international concern, not for unilateral action by one country's EPA. Private litigation upsets the resolution of such disputes through diplomatic means, or through the long-standing model of an arbitration group that was specifically established for the smelter in the 1930s. Allowing such litigation in U.S. courts opens them up to worldwide claims, particularly as environmental science improves, and could subject U.S. firms to retaliatory litigation abroad, imposing multiple and conflicting standards on environmental behavior.

Teck Cominco appealed for rehearing. On 7/24/2006, the NAM and the National Mining Association filed a brief in support of this appeal, arguing that the site of the release is irrelevant for resolving the question whether the United States is improperly applying its law to an entity based in another country. The decision ignores the history of negotiated international disputes and transforms CERCLA into a global environmental statute. Rehearing was denied on Oct. 30, 2006.

The NAM is part of a joint industry effort to support the Environmental Protection Agency’s 8-Hour Ozone Phase I Implementation Rule. Since enactment of the Clean Air Act in 1990, EPA has been working to implement provisions that establish ozone control requirements and deadlines for compliance. First it established a standard based on a 1-hour measurement system, with 5 classifications of violations (marginal, moderate, serious, severe or extreme). In 1997, EPA replaced the 1-hour standard with a more stringent standard with an 8-hour averaging time, and, after court challenges that went to the Supreme Court, again modified the regulation to provide different compliance timetables depending on the levels of ozone in a particular area.

The State of Ohio sued to delay the 8-hour standard and to force EPA to adopt more reasonable deadlines. It feared that implementation will require the “depopulation strategy,” whereby all local industry must shut down and all local vehicle traffic must be stopped in the Cleveland-Akron area. The Baton Rouge Chamber of Commerce sued to eliminate enforcement under the old 1-hour standard. The American Lung Association, the Natural Resources Defense Council and others, sued to force the use of specific timetables for implementation and to prevent companies from backsliding from the old standard. The NAM and other industry groups intervened in these suits to generally support the EPA’s latest efforts.

Our brief argued that the EPA’s balance of compliance requirements involving either the old 1-hour standard or the tougher 8-hour standard is valid. Nothing in the Clean Air Act requires old standards to remain in effect in perpetuity. Since the old standard was revoked, penalties should not continue to be assessed under that system. We supported EPA’s determination that an area subject to the 8-hour measuring standard should be subject only that the new classification system that goes with it.

On December 22, 2006, the D.C. Circuit vacated the rule and remanded the matter to EPA for further proceedings. The court upheld EPA's decision to revoke the 1-hour ozone standard, but imposed substantial restraints. It struck down EPA's decision classifying nonattainment areas under the generally less demanding Subpart 1 (of Part D of Title I), instead ruling that areas with 8-hour "design values" (the measured concentration of ground-level ozone) above .09 ppm must be classified under Subpart 2. It called EPA's decision to apply only Subpart 1 requirements to areas with 8-hour design values between .08 ppm and .09 ppm unreasonable. In addition, EPA's rules were designed to prevent "backsliding" by regulated industries, and the D.C. Circuit ruled that several requirements continue to apply (such as New Source Review requirements, section 185 emission fees, contingency plans for failure to improve, and local transportation planning restraints).

Until further word from EPA, the new 8-hour designation/classification system was vacated, but the designations/classifications themselves were in a separate rule that was not vacated. Thus, those designations and classifications apparently remain in effect, with State Implementation Plans due in June. In addition, the anti-backsliding provisions under the 1-hour rule are still in effect.

On March 22, 2007, the NAM joined with other organizations in a petition for rehearing. We argued that the court's decision expands EPA's Section 172(e) authority to prevent companies from backsliding on ozone pollution limits. We argued that the backsliding provision applies only if air quality standards are relaxed, and the EPA in fact issued revised standards that are more stringent. In addition, existing case precedent requires that courts defer to EPA interpretations that are reasonable. The court's decision second-guessed the EPA's interpretation, and conflicts with that of another federal appeals court. The petition for rehearing was denied 6/8/2007.

These cases were filed in 2003 by 12 states and various environmental and other organizations to force the Environmental Protection Agency to regulate greenhouse gases (carbon dioxide, methane, nitrous oxide and hydrofluorocarbons) from new motor vehicles as pollutants. The EPA and 10 other states opposed the suits, and the CO2 Litigation Group, of which the NAM is a member, intervened. On 7/15/05, the D.C. Circuit issued a splintered decision allowing the EPA to continue to decline to regulate greenhouse gases. Judge Randolph ruled that the EPA had discretion and a scientific justification not to regulate greenhouse gases, and, although Judge Sentelle refused to reach this issue, he ruled that the petitioners did not have standing to bring the case. Thus, the EPA’s decision stands. Judge Tatel dissented, arguing that the EPA does have the authority and has failed to give an adequate explanation for not regulating greenhouse gases. Whether the EPA is mandated by statute to regulate greenhouse gases is unresolved. It has declined to do so at this point. The NAM does not believe the EPA has this authority, nor is there sufficient evidence that emissions of greenhouse gases from domestic automobiles endanger public health or welfare.

The NAM is one member of a coalition of associations known as the NSR Manufacturers Roundtable which filed a motion 1/15/03 to intervene in a suit brought by NY, CT, ME, MD, MA, NH, NJ, RI and VT against the EPA's final regulation governing the procedures for companies to install stringent emission controls at their facilities under the Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR) provisions of the Clean Air Act. These states challenged the legality of EPA's rule, and the NSR Manufacturers Roundtable intervened to insure that the court considers the views of manufacturers and the effects of the rule on industry. The Roundtable includes the Alliance of Automobile Mfrs., the American Chemistry Council, the American Forest & Paper Assn., the American Iron and Steel Institute, American Petroleum Institute, the Council of Industrial Boiler Owners, National Mining Assn., the National Petrochemical & Refiners Assn., the Portland Cement Assn. and the NAM.

The NSR Manufacturers Roundtable’s first brief (filed 5/11/04) challenged EPA language in the rule’s preamble and argued that the statutory language, as well as the history of its enforcement, makes clear that the first step of the analysis of whether there is a change to an existing emissions unit at a stationary source is the requirement that the emitting capacity of the existing unit must be increased (i.e., that “new pollution” be created) by the change.

An 8/30/04 brief supported the EPA’s methodology for determining whether annual emissions have significantly increased.

The D.C. Circuit issued a mixed ruling on 6/24/05. It upheld some of the EPA’s decisions, vacated others, and rejected as not ripe industry’s challenge to the rule’s preamble language on the “actual-to-potential” methodology. The court’s main rulings are:

This case is about whether permits are required when power plant repairs are made to allow boilers to continue in service and operate for more hours than before the renovations. The EPA argued that these repairs were modifications that allowed the boilers to produce more emissions (albeit at the same rate per hour) than authorized by existing permits. Duke Energy argued that the definition of a modification that would necessitate a new permit includes only changes that increase the hourly emission rate, since that is the definition the EPA uses under its New Source Performance Standards (NSPS). The Fourth Circuit ruled 6/15/05 that the EPA cannot interpret the word “modification” two different ways when the statutes in which the word appears define it identically. Consequently, since the definition of modification under the NSPS only applies to changes that increase the hourly emission rate, no permit is required.

This is a significant victory for any business that generates emissions regulated by the Clean Air Act. American industry would grind to a halt if it were required to scrutinize for potential permits thousands of renovation activities each year. For instance, if the activity is a necessary repair or replacement project, the result could be an extended shutdown of the facility until it could be undertaken.

The NAM and other business organizations filed a brief 10/15/04 supporting this result. The joint brief argued that New Source Review permit requirements are only triggered when facilities are physically changed or modified to create an increase in emissions over the level approved in the original permit process.

This case on appeal to the Supreme Court is Environmental Defense v. Duke Energy Corp.

The Environmental Protection Agency charges companies for remedial planning and remedial action monitoring costs that the EPA incurs, either themselves or through government contractors, while monitoring clean-up activities at Superfund hazardous waste sites. Since its 1993 Rohm and Haas decision, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey and Delaware) has not allowed such cost shifting from the EPA to manufacturers. That favorable ruling has now been overruled. It held that Congress conferred power on the EPA with an intelligible principle governing the exercise of such power, namely, that the remedial action be “not inconsistent” with the National Contingency Plan, which sets forth methods and criteria for determining the appropriate extent of removal, remedy and other measures. Other provisions also guide and constrain the EPA in its ability to impose oversight costs on responsible parties.

The NAM joined with the American Chemistry Council, the American Petroleum Institute, the Chamber of Commerce, the Corporate Environmental Enforcement Council, the National Petrochemical and Refiners Association and the Superfund Settlements Project in an amicus brief 7/13/05 in support of DuPont. We argued that Congress never intended for EPA to finance its oversight activities by assessing the costs against those whom it regulates. Such a scheme must be authorized by a “clear statement” from Congress, particularly to avoid the many serious problems with the administration of the program. Our brief provided a detailed look at the history of (1) EPA performing more oversight than necessary, (2) EPA relying too heavily on contractors, (3) EPA not managing its contractors effectively, (4) EPA not negotiating effectively with its contractors, (5) contractors charging for excessive support costs, (6) and contractors having incentives to operate inefficiently.

In addition, we warned that (1) EPA’s poor documentation and billing practices further reduce accountability, (2) the money collected is placed into special accounts with little accountability to Congress, and (3) an adverse ruling in this case could allow the EPA to assess similar costs under the Clean Air Act and the Clean Water Act. The EPA has been able to reduce its program support costs on an aggregate basis recently.

The Supreme Court held 4/27/04 that Section 209(a) of the Clean Air Act, 42 U.S.C. § 7543(a), preempts California air-quality-management district regulations that require certain motor vehicle fleet operators to purchase vehicles that the State has classified as “low emission” or that operate on an alternative fuel. Section 209(a) provides that no “State or political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines covered by this part.” The Court rejected arguments that the word “standard” in Section 209(a) reaches only production mandates imposed on manufacturers, and does not encompass purchase restrictions. The Court held that this argument was inconsistent with the plain meaning of “standard” and would create a nonsensical regulatory regime in which a manufacturer could not sell federally approved vehicles because state law would abrogate a purchaser’s right to buy them. The outcome of this case is important to the entire transportation industry.

The NAM and 7 other business organizations filed an amicus brief 8/29/03 arguing that the fleet rules conflict with the Clean Air Act and are preempted.

The Louisiana Supreme Court emitted a glimmer of sanity 1/28/03 when it overturned lower court rulings that made a company liable for speculative injuries and unproven damages from materials in soil taken from company property. We challenged the use of the “linear no-threshold” model of causation in tort litigation. This model essentially states that any level of exposure to a toxic agent is sufficient to cause injury.

This is an important asbestos contamination case because the trial court and the appellate court awarded damages without any actual injuries: the claims arose from a slightly increased chance of contracting cancer and the fear of getting cancer, along with property damage. 143 plaintiffs filed suit, and then sought class action status. The trial court awarded from about $18,000 to $48,000 to individuals in 4 families.

In its ruling, the Louisiana Supreme Court rejected 6 to 1 the trial court's awards for a "slightly" increased risk of contracting an asbestos-related disease, emotional distress and punitive damages. It allowed an award for property damage.

The NAM supports the bedrock principle that proof that the defendant’s behavior actually caused harm should be a prerequisite to redress in our tort system lest our courts become flooded with lawyer-driven claims brought on behalf of persons who merely fear, but do not yet have and may never have, an injury.

The NAM, Allied Waste Industries, Inc. and the National Solid Wastes Management Association filed an amicus brief 2/7/03 urging the court to reverse a district court ruling that holds an innocent business asset purchaser liable under CERCLA as a “successor” for Superfund damages caused by the selling company. Brief. (CERCLA is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which governs the clean-up of Superfund sites.)

On 12/17/03, the court ruled, as most other federal courts have, that CERCLA does not include the "substantial continuity" doctrine. Courts must look to traditional common law rules of successor liability, instead of more liberal rules designed to expand the net of CERCLA liability. The court agreed that imposing an onerous "substantial continuity" standard would deter economically beneficial transactions and impose unpredictable liability of purchasers, depressing the price they would be willing to pay for a company's assets.

This is a big win for NSI and other companies that want to buy the assets of other companies without assuming unknown Superfund liabilities. The case was sent back to the trial court for further proceedings, but the ruling overturned a judgment of $12,449,479.51 against NSI.

The NAM filed an amicus brief 6/5/01 with other organizations challenging a district court ruling that Alcan has joint and several liability under CERCLA for processing waste that is commingled with other wastes, without regard to its benign nature. The brief also argued that CERCLA should not be applied retroactively.

In January, the Second Circuit ruled that Alcan could not avoid joint and several liability because its waste was not merely at background levels (since it contained PCBs that are not naturally occurring), and that the harmed caused could not be separated from the overall damage at the cleanup site. The court also ruled that CERCLA may be applied retroactively. The decision makes it harder for companies that contribute only small amounts of materials to a hazardous waste cleanup site to limit their liability for a much larger share of the cleanup costs.

This litigation by the NAM and other business groups against the EPA went all the way to the U.S. Supreme Court in 2001 (see Whitman v. American Trucking Associations, Inc.) . The Court remanded it to the D.C. Circuit for further proceedings regarding the validity of EPA's standard for ozone and particulate matter. On 3/26/02, the D.C. Circuit found that the EPA's 1997 NAAQS rules for PM2.5 and ozone are neither arbitrary nor capricious. The Court denied petitions for review except to the extent the Supreme Court’s 2001 decision and the D.C .Circuit’s 1999 decisions require further action by the EPA.

The D.C. Circuit began by pointing out that its earlier decisions addressed only whether the Clean Air Act (or the EPA’s reading of the CAA) adequately limits the EPA’s discretion. However, the 3/26 decision involves whether the EPA reasonably exercised its discretion under the CAA. The Court found that the agency was not arbitrary and capricious in promulgating either rule.

With respect to PM2.5, the Court said that the EPA need not “identify perfectly safe levels of pollutants” and need not “definitively identify pollutant levels below which risks to public health are negligible.” Importantly, the Court also rejected environmental groups’ challenges to the PM2.5 standard as insufficiently stringent.

On ozone, the Court found that the EPA had a basis for its conclusion that the existing one-hour standard was inadequate. Based on the rulemaking docket, the Court concluded that the EPA’s choice of the 0.08 parts per million level was not arbitrary and capricious. Earlier holdings that the 8-hour ozone implementation policy is unlawful and that the EPA must consider evidence of ground-level ozone’s beneficial effects are left undisturbed by this ruling.

The NAM and 12 other organizations sued the EPA on March 17, 2000. Its petition for review challenged the EPA's interim guidance on the definition of federally permitted releases for air emissions. As a result of the suit, the EPA suspended the Interim Guidance on 5/19/00 in a motion to the court.

On 4/17/02 the Environmental Protection Agency (EPA) published its "Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions." This guidance supersedes the December 17, 1999 Interim Guidance, which is now deemed to be withdrawn. The NAM praised the new guidance in a press release.

The new guidance clarifies the discussion of volatile organic compounds (VOCs) and particulate matter (PM) limits and controls and when releases of hazardous substances which are constituents of these pollutants could qualify for the FPR exemption under CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act] and EPCRA [Emergency Planning and Community Right-to-Know Act]. The Guidance also adds a section addressing nitrogen oxide (NO) and nitrogen dioxide (NO2). The guidance also discusses certain releases from minor sources and announces a forthcoming guidance document that addresses grandfathered sources.

The lawsuit was dismissed voluntarily.

The NAM joined with the Electronic Industries Alliance in an amicus brief 11/20/01 urging the Second Circuit to rehear a case in which Vermont's light-bulb labeling law was upheld. Our concern is that state laws must be narrowly tailored not to unduly interfere with the free flow of goods nationwide, and Vermont's law relating to light bulbs containing mercury could seriously disrupt the distribution system of these products. The court denied the petition for rehearing on 1/8/02.

The NAM filed an amicus brief supporting Supreme Court review of this issue, since there are many situations where states may enact laws that purport to affect both in-state and interstate commerce equally, but that as a practical matter make it extremely expensive for manufacturers and distributors to comply with conflicting, or simply different, labeling requirements at the end-user level. The Supreme Court declined to hear this appeal on 6/10/02.

The NAM supported a challenge to a district court ruling that allowed the EPA to "overfile," or bring a separate enforcement action under the Resource Conservation and Recovery Act (RCRA) against a company already being prosecuted by the Colorado Dept. of Public Health and the Environment. Other courts of appeals have taken the NAM’s position that such overfiling is illegal. The NAM's brief was filed on 9/17/01 with the American Iron and Steel Institute, the American Petroleum Institute, the Chamber of Commerce of the United States, the Environmental Federal of Oklahoma, the Michigan Manufacturers Association and the Western States Petroleum Association. On 9/4/02, the court affirmed, ruling that EPA's interpretation of RCRA is "not unreasonable."

The NAM supported an appeal to the Supreme Court of an adverse ruling by the Second Circuit that would allow a municipality, country or state to impose flow-control restrictions on the interstate transportation of solid waste. Flow-control laws allow local jurisdictions to prop up their disposal facilities by preventing waste generated in the locality from being taken anywhere else. The 1994 Supreme Court decision in the Carbone case ruled that a town's law flow-control ordinance discriminated against interstate commerce. The Second Circuit in this case provided a blueprint for local governments to avoid the Carbone decision by vesting part of the ownership of private waste disposal facilities in a public entity. The NAM filed a joint brief arguing that this ruling will seriously disrupt the interstate market in solid waste disposal services, including recyclables, and is based on a myopic focus on who owns the facility. On 1/7/02, the Supreme Court declined to review this case.

The NAM applauded the Fourth Circuit's 10/10/01 ruling in this case giving public and private permit holders under the Clean Water Act a margin of protection for discharges that would be reasonably contemplated in their permits. The Court held that there is a "protective shield" within which limited deviations in the properties of the permitted discharges are allowed, as long as the permit holder complies with the terms of the permit and the challenged discharges are within the "reasonable contemplation" of the permitting authority at the time the permit was granted.

The NAM had filed an industry amicus brief with the Fourth Circuit in April on behalf of the defendants in the case. Plaintiffs sued when it was learned that a county-run wastewater treatment facility was discharging warm water into a local stream, even though its environmental permit did not expressly allow for heated discharges.

NAM general counsel Jan Amundson said, "Although this ruling would suggest that future permit applicants need to be diligent and comprehensive with specific language during the application process, it should also send a signal to those contemplating nit-picking nuisance suits. The courts may be losing their patience for them."

The NAM filed an amicus brief with the American Chemistry Council and the Chemical Industry of New Jersey on 6/29/01 opposing a citizen suit alleging that state environmental permits discriminate against racial or ethnic groups. This case involves the proposed development of a "brownfield," an area of abandoned, inactive or underutilized industrial sites that are located in urban areas that are disproportionately populated by minority and/or low-income citizens. Development of these sites attracts new industrial facilities, providing net benefits to their communities.

The Third Circuit had wisely granted a stay of the district court’s decision, thus allowing St. Lawrence Cement Co. to start operations and remain open until a Merits Panel could hear the case. The district court 5/10 ignored the U.S. Supreme Court’s 4/24 Sandoval decision, which said private individuals may not sue states under Civil Right Act Title VI over unintended consequences of state agency decisions, including permits for manufacturing facilities.

The NAM's brief argued that EPA's "disparate impact" regulations cannot be enforced by private plaintiffs under 42 U.S.C. § 1983, nor can they be enforced by private plaintiffs under section 602 of Title VI of the Civil Rights Act of 1964. Such claims are "so vague and amorphous -- so subjective and standardless-- that they strain judicial competence." The NAM brief said the district court ruling "opens up state environmental permits to collateral attacks in federal court . . . based on criteria that are not clearly delineated, understood or agreed upon." In addition, it "will result in federal courts throughout the nation sitting as local zoning boards reviewing environmental permit decisions."

On 12/17/01, the Third Circuit agreed, ruling that there is no private right of action under Section 602 of the Civil Rights Act to enforce the "disparate impact" rules of the EPA.

On 2/27/01, the Supreme Court rejected two main arguments in a challenge by the NAM and other industry groups of the Environmental Protection Agency’s power to set national air-quality standards under the federal Clean Air Act.

EPA concedes that these basic air-quality standards drive regulatory and compliance expenditures that run into the hundreds of billions of dollars per year. Nevertheless, the legal test applied by EPA, and approved by the Court, permits EPA to ignore the tools that have proven most effective in shaping and implementing effective regulatory programs.

These tools include, among others, consideration of indirect as well as direct effects; identification of significant risks of public heath; assessment of the costs and benefits of alternative margins of safety in preventing health risks; and a keen awareness of the practical and real-world effects of regulatory choices. These very tools are now at work shaping the regulatory policies of other federal agencies, including the Occupational Safety and Health Administration, and there is no reason that they could not be effectively applied to EPA as well.

The Supreme Court ruled that costs may not be taken into consideration when EPA sets clean air quality standards. It also ruled that the Clean Air Act is not an unconstitutional delegation of legislative power from Congress, since it includes language that "fits comfortably within the scope of discretion" previously permitted under prior Supreme Court precedents.

The Court did, however, remand the case for the lower court and the EPA to determine other issues and to reconsider how to reconcile conflicting interpretations of the implementation schedule for compliance. The NAM will actively pursue its remaining complaints about the ozone and particulate matter regulations.

The NAM filed suit against the EPA 4/10/98 arguing that an EPA rule improperly granted Indian tribes authority to act under the Clean Air Act. On 5/5/00, the D.C. Circuit upheld EPA’s 2/2/98 Final Air Quality Planning and Management Rule for Indian Tribes ("Rule"). In April, 2001, the Supreme Court declined to hear the appeal.

The Rule provides that the EPA will delegate to any federally recognized Indian Tribe, upon receipt of a properly completed tribal application, authority to implement federal Clean Air Act ("CAA") programs over lands located within the exterior boundaries of what EPA refers to as "Indian Country", as that term relates to a tribe. "Indian Country" thus includes all lands within the boundaries of a traditionally federally recognized Indian reservation (including privately owned, non-Indian lands), lands within the boundaries of off-reservation areas held in trust for a tribe by the federal government, and other lands over which a tribe can demonstrate that it has jurisdiction. Under the Rule, off-reservation "trust lands" include those lands purchased or acquired by a tribe or tribal member and placed into trust--including lands acquired for commercial and gaming casino purposes. The EPA’s definition of Indian Country conflicts with the far more restrictive definition of "reservation" used by Congress, the federal courts and even the EPA in other federal laws, cases and regulations governing tribal affairs.

Pursuant to the Rule, tribes may also "redesignate", as "Class I" areas for air quality management purposes, lands located outside of traditional reservation boundaries. Under current federal law, only lands within such boundaries may be redesignated as Class I. Redesignation to Class I status invokes the most stringent federal air quality protection standards relating to the siting of new or modified manufacturing facilities in areas sometimes located several hundred miles away from the Class I area.

Other features of the Rule include the elimination of the Title V requirement for review in state court of adverse tribal operating permit decisions and permitting delays and the insulation of tribes from citizen suits for asserted violations of the law. Moreover, upon approval of a tribal authority application under the Rule, state air permitting agencies will be stripped of their own authority to issue or renew installation, operation and other air permits to industrial sources located or seeking to locate within Indian Country, and existing state air permits issued to such sources will be invalidated.

Prior to issuance of the Rule, tribes, like states, were required to affirmatively demonstrate the public health, welfare and environmental bases for their assertion of environmental authority over lands that are clearly otherwise within their jurisdiction. That is no longer the case. The Court’s decision now allows the EPA (an administrative agency), in conjunction with tribes, to redraw state boundaries for regulatory purposes and to dispossess state permit holders of substantial rights. The EPA asserts that other federal environmental laws similarly allow EPA to delegate to a tribe authority to regulate other environmental media within "Indian Country".

The Petitioners in the case included, among others, the State of Michigan, several Arizona and New Mexico utility companies, the National Association of Manufacturers, the American Forest and Paper Association, the Michigan Chemical Council, the Rhinelander Area Chamber of Commerce and the Timber Producers Association of Michigan and Wisconsin, Inc. It is their position, among others, that decisions to redraw state boundaries for regulatory purposes must be made within the framework of established federal law and the United States Constitution, with full public participation, and not at the whim of federal administrative agencies. For more information regarding the Rule, contact Brian J. Renaud of Howard & Howard Attorneys, P.C., at (248) 723-0356, counsel in the case for NAM, AF&PA, the Michigan Chemical Council, the Rhinelander Area Chamber of Commerce, Inc. and the Timber Producers Association of Michigan and Wisconsin, Inc. Case decided on 5/5/00.

Friends of the Earth brought an enforcement action against Laidlaw pursuant to the citizen-suit provision of the Federal Water Pollution Control Act (Clean Water Act). They alleged ongoing violations by Laidlaw of certain permits and sought monetary penalties, declaratory judgment, injunctive relief, attorneys’ fees and costs.

The district court found that Laidlaw had committed several permit violations and imposed a penalty of $405,800. The court did, however, deny plaintiffs’ request for declaratory judgment and injunctive relief because Laidlaw’s violations had not harmed the environment and Laidlaw had been in substantial compliance for several years at the time the court issued its final order.

The plaintiffs appealed the size of the penalty to the Fourth Circuit Court of Appeals, but did not challenge the denial of injunctive relief. Laidlaw argued that plaintiffs lacked standing. Applying Steel Co. v. Citizens for a Better Environment, the court concluded that "this action is moot because the only remedy currently available to Plaintiffs—civil penalties payable to the government—would not redress any injury Plaintiffs have suffered." It vacated the order of the district court and remanded the case with instructions to dismiss the action.

On January 12, 2000, the Supreme Court reversed by a vote of 7 to 2. It held that the case is not moot even where the company has come into compliance with its permit, since it was in violation at the time of the complaint, and its violations could continue into the future if undeterred. It sent the case back to the lower courts to determine whether there was any chance that the company might still violate its permit in the future. The ruling is a step back from the Steel Company decision, where it found that citizen suits could not be filed for wholly past permit violations.

The NAM filed an amicus brief with Halliburton Co. and Dresser Industries, Inc. on March 13, 2000 in a case involving how a standard insurance policy will be interpreted with respect to pollution. States have developed different interpretations of the standard language, and the NAM supports an interpretation that would allow coverage for unexpected and unintended discharges or emissions, even though they may not occur quickly. The Texas Supreme Court declined to hear this appeal on April 13.

The NAM filed an amicus brief supporting a request for attorneys' fees where the lumber company won a citizen suit brought against it under the Endangered Species Act. (S. Ct., cert. denied 1/21/00).

On February 28, 2000, the NAM filed an amicus brief opposing the criminal prosecution of a manufacturing CEO for the company's pollution release into a local waste treatment plant. The Ninth Circuit denied the petition for rehearing on 4/14/00. The issue involved whether a public sewer system should be considered part of the "environment" for purposes of the sentencing guidelines.

(consolidated with American Petroleum Institute & NAM v. EPA) -- The NAM filed a brief in March of 1998 calling on the court to review the final rules on the EPA's new air quality standards for ozone and particulate matter, as well as a final EPA rule relating to the "federal reference method" for National Ambient Air Quality Standards. On May 14, 1999, the U.S. Court of Appeals for the District of Columbia rejected these rules implemented by the EPA concerning ozone pollution. This ruling, a victory for manufacturers, was subsequently appealed to the Supreme Court, which reversed in 2001.

The D.C. Circuit's ruling temporarily stopped the EPA from assuming arbitrary authority. Manufacturers have struggled with EPA standards that are unrealistically strict and not reasonably related to clear health benefits. The ruling required EPA to say why the ozone pollution levels it has set are reasonable in term of health effects

The Court denied in part and granted in part the EPA’s petition for rehearing on Oct. 28, 1999.

The Government petitioned for Supreme Court review, on 1/26/99. The EPA appealed three issues, including whether:

1) the rulemaking process used by the EPA in revising the ozone and PM NAAQS "effects an unconstitutional delegation of authority";

2) the D.C. Circuit erred in assuming it had authority to review as a final agency action EPA’s "preliminary preamble statements on the scope of the agency’s authority to implement the revised ‘eight-hour’ ozone NAAQS;" and

3) subpart 2 of the Clean Air Act (which sets requirements for areas to come into attainment with the one-hour ozone standard) restricts EPA’s authority under other provisions "to implement a new and more protective ozone NAAQS" until the one-hour standard is attained.

EPA did not appeal the D.C. Circuit’s finding that the Agency must consider all health effects, both negative and positive, in setting a standard.

Background: When EPA issued its new air rule for ozone, the agency ignored the advice of its own scientific advisory panel and sidestepped a 1996 law designed to mitigate the costs of major rules on small businesses. These issues are the driving force behind an NAM lawsuit challenging EPA’s new ozone air quality standard. Two NAM briefs filed 3/23/98 ask the Court of Appeals to throw out the rule.

The NAM briefs noted that EPA’s new standard lacks the scientific support called for under the Clean Air Act and could actually lower health protection. The new standard:

Just as bad, EPA ignored its statutory duty to comply with the Small Business Regulatory Enforcement Fairness Act (P.L. 104-121), which requires agencies to study the potential impacts of major rules on small entities and find ways to mitigate their costs.

On 9/16/99 the Eighth Circuit ruled that the Environmental Protection Agency can not bring its own enforcement action under the Resource Conservation and Recovery Act to secure additional penalties or impose other burdens on companies that generate wastes deemed hazardous under the Act. States currently administer their own RCRA-authorized programs that include settlements of violations. The court agreed with an NAM amicus brief asserting that the power of EPA to "overfile," or simultaneously enforce RCRA against companies being prosecuted under state RCRA programs would subject manufacturers to duplicative or inconsistent corrective measures and additional penalties. According to the court, the state enforcement authority is in lieu of and supplants the federal program.

This is an important victory for manufacturers that have been subjected to multiple enforcement actions by the EPA and affected states.

In this case, the NAM supported Smithfield Foods seeking reversal of an EPA civil enforcement suit for violation of its National Pollutant Discharge Elimination System (NPDES) permit. Smithfield had an agreement with the Virginia State Water Control Board to meet new permit requirements, but the EPA sought to impose more than $12 million in fines despite an agreement Smithfield had reached with Virginia to connect to the local waste water treatment system.

The Fourth Circuit ruled 9/14/99 that because Virginia had not formally modified the permit to allow certain discharges, its written statements that the phosphorous standard would not be enforced were irrelevant. It ruled that imposing both daily and monthly fines were not double counting. It also refused to allow Smithfield to offset its liability with payments being made to tie in to a municipal waste treatment facility.

The bottom line: letters from state officials, without changes in the actual permits, will not eliminate federal EPA enforcement of NPDES requirements, and EPA can impose strict financial requirements.

The NAM and other associations filed challenges to purported state authority under the National Pollution Discharge Elimination System (NPDES) to implement Endangered Species Act requirements. Filed 5/20 and 5/27/97. This case could affect all discharge permits as EPA tries to impose Endangered Species Act requirements through NPDES programs under the Clean Water Act (CWA). On 3/30/98, the Fifth Circuit ruled that EPA cannot condition CWA permit decision on Endangered Species Act consultations. The Tenth Circuit case was dismissed on 9/1/98 with a decision holding that the plaintiffs did not have standing.

A 1996 EPA rule tried to delegate CWA enforcement and permitting decisions to Louisiana, but added new requirements that the state consult with the U.S. Fish and Wildlife Service and National Marine Fisheries about the possible effects of discharges on certain species. The 5th Circuit ruled that the CWA does not allow such consideration of factors outside the nine concrete criteria specified for the issuance of a permit.

The Court also ruled that an association need not have commented on a proposed rule during the rulemaking process to bring suit after the rule is issued. It also found that the association had "injury in fact," not speculative injury, because its members must comply with the provisions as their permits come up for renewal every five years, and because the EPA has already identified the circumstances under which it will veto a proposed permit.

(Also known as Clean Air Implementation Project vs. EPA). The NAM filed this petition 4/18/97 to review a final EPA rule relating to credible evidence. The case affects manufacturers subject to new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAPs) under the Clean Air Act. The case was dismissed on 8/14/98 as unripe.

The NAM petitioned the D.C. Circuit to review final regulations establishing simplified "Type A" procedures for natural resource damage assessments under the Comprehensive Environmental Response, Compensation and Liability Act. The procedures rely on complex computer modeling with very little site-specific input, and create a rebuttable presumption against potentially responsible parties, including many NAM members. The NAM argued that the regulations were invalid because (1) liability might be imposed without a showing of actual injury, (2) an assessment includes restoration without considering feasibility or cost-effectiveness, and (3) a restoration model assumes losses that are speculative and hypothetical. The D.C. Circuit court on 1/16/98 rejected the NAM arguments, concluding that the Department of the Interior's interpretation of the relevant CERCLA provisions were entitled to deference and that its damage submodels "suffice."

Vacating the decision of the Sixth Circuit, a unanimous Supreme Court specified when a parent corporation may be held liable, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as an operator of a polluting facility that is owned and operated by its subsidiary. The mere fact that the parent corporation actively participated in and exercised control over the operations of the subsidiary will not, in itself, make the parent corporation derivatively liable unless, under applicable law (which the Court declined to identify), the subsidiary has been controlled to such an extent that it should not be regarded as a separate entity (a doctrine known as "piercing the corporate veil"). However, if the parent corporation actively participated in and exercised control over the operations of the facility itself, then it may be held directly liable as an operator of the facility.

The NAM filed an amicus brief 2/20/98 arguing that state corporate law clearly limits the liability of shareholders of corporations (including shareholders that are themselves corporations), even when they actively participate in running the corporation. The brief argued that the courts should not create a new body of federal common law in place of the well-established body of state common law in this area.

In this case, the Court unanimously held that the petitioners had standing to seek judicial review of a "Biological Opinion" issued by the Fish and Wildlife Service, under the citizen-suit provision of the Endangered Species Act (ESA) and the Administrative Procedure Act (APA).

The Biological Opinion concluded that the long-term operation of the Klamath Project, a series of lakes, rivers, dams, and irrigation canals administered by the Bureau of Reclamation, was likely to jeopardize the continued existence of two endangered species of fish. The Opinion recommended that the Bureau protect these fish by maintaining minimum water levels on certain bodies of water. The Bureau agreed to follow this suggestion. Petitioners, who have competing economic and other interests in Klamath Project water, alleged that the Service's determination that the endangered fish were in jeopardy violated Section 7 of the ESA, that the minimum water level recommendation violated Section 4 of the ESA, and that each action was arbitrary and capricious under the APA. They further claimed that they had standing to bring these claims because the minimum water levels threatened to reduce their irrigation water supply.

The Court first considered whether petitioners' standing under the ESA's citizen-suit provision was to be evaluated under the prudential principle that a "grievance must arguably fall within a zone of interests protected or regulated by the statutory provision . . . invoked in the suit." The Ninth Circuit had ruled that the zone-of-interests standard applied to claims brought under this provision and that the petitioners' claims fell outside the zone of interests protected by the ESA. The Supreme Court, however, held that the breadth of this citizen-suit provision (authorizing "any person" to "commence[e] a civil suit") indicated that Congress had determined that the zone of interests test was not to be the measure of standing under the ESA.

The Court also concluded that the petitioners had standing under Article III. The Court held that at the pleading stage, an alleged reduction in irrigation water supply constituted an "injury-in-fact." Under the "relatively modest" causation standard in place at this stage of litigation, the Court further found that this injury was "fairly traceable" to the issance of the Biological Opinion and was likely to be "redressed" if the Opinion was set aside. The Court noted that judicial review of the petitioners' claims was authorized under two different federal statutes: while the petitioners' Section 4 claim was reviewable under the citizen-suit provision contained in the ES, their Section 7 claim was reviewable only under the APA.

This case involves an enforcement action for alleged violations of the federal regulations pertaining to equipment in facilities that produce or use benzene. The NAM filed a brief supporting arguments concerning the government's refusal to comply with Administrative Procedures Act and Clear Air Act provisions mandating that prior notice be given of agency regulatory requirements, thus, attempting to make a significant change in the meaning of a rule without first going through notice and comment. The Court deferred to EPA’s interpretation of "use," and found HCC had notice as of 1989. The case affects companies that recycle benzene at their facilities. Decided 10/27/97. This case was appealed to the Supreme Court, but the Court declined to review it.