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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 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 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 filed a motion to intervene in a chemical litigation suit against the Consumer Product Safety Commission (CPSC) arguing that the plaintiffs lacked standing because the plaintiffs could not provide evidence that they suffered an injury or future injury. The plaintiffs sued the CPSC after a missed deadline to force the CPSC to move forward with a final rulemaking process to ban certain phthalates from the market. The NAM intervened on behalf of manufacturers. Our brief argued that the plaintiffs could neither establish a showing of credible harm, nor show a link between their alleged harm and the procedural delay in implementing the rule. This litigation forced CPSC to expedite its review process and backtrack on its previously stated view of the amount of time needed to implement a scientifically sound rule. The parties settled the case by signing a consent decree that required the CPSC to vote on a final phthalates rule by October 18, 2017.

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.

Two environmental groups sued a municipality for discharging water that allegedly exceeded water quality standards. However, the discharge was from a concrete flood control system used simply to reroute a river. The Supreme Court decided that water coming from such a source does not constitute a “discharge” under the Clean Water Act (CWA). Limiting the breadth of obligations that might be required of municipalities trying to control floods and stormwater helps keep down costs for everyone within their jurisdictions.

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.