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Various states have sued EPA over its tailoring rule, by which the agency is rolling 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 have filed a motion to intervene in litigation filed by representatives of 8 states challenging EPA's authority. Their lawsuit seeks 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 have also filed a separate petition to review the EPA's tailoring rule. For a complete listing of NAM cases against EPA, click here.

On April 29, 2011, the NAM joined with 10 other associations asking a federal court to review EPA's new regulations on commercial and industrial solid waste incineration (CISWI) units. The rules have the potential to impose additional costs on key industrial sectors. We filed formal petitions in federal court challenging the rules to ensure that, if EPA fails to reconsider its actions, an appeals court panel will have a chance to consider whether EPA acted within the law.

On the same day, we filed a suit challenging EPA's rules establishing stricter emissions limits on industrial, commercial and institutional boilers. For details, see U.S. Sugar Corp. v. EPA (D.C. Cir.).

On May 16, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules "until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier." A new effective date will be published "once delay is no longer necessary." EPA published a new proposed rule on Dec. 23, 2011, and intended to take final action on it in the spring of 2012. However, it is still reviewing data and information submitted in response to the proposed reconsideration rule.

EPA asked that this case be held in abeyance pending completion of its completion of work on the new regulations and consideration of various administrative petitions. It recognized that industry would need to make compliance investments soon that may not be reversible if the standards are later revised. The court has agreed to holding the case in abeyance, and is receiving periodic reports on the status of the new regulatory effort.

On June 16, 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 in July, 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.

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 interpret its authority with its Tailoring Rule -- tailoring the impact of the rule to only hit the largest emitters of greenhouse gases. That rule was necessary to prevent absurd consequences from the EPA's earlier interpretations of its authority. The NAM has argued that EPA could have adopted a more reasonable interpretation of its power so as to avoid the absurdities it is now trying to ameliorate. This latest rule (the Tailoring Step 3 rule) was issued on July 12, 2012.

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 are challenging this latest rule, published Oct. 15, 2012, as well. The case has been consolidated with Plant Oil Powered Diesel Fuel Systems, Inc. v. EPA (No. 12-1428, D.C. Cir.) The NAM’s previous challenges are also currently under consideration by the D.C. Circuit.

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.

The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on hazardous air pollutants issued by EPA on Jan. 31, 2013, entitled “National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters.” The rule was written to require the maximum degree of reduction in emissions of hazardous air pollutants that is achievable, taking into consideration the cost of achieving such reductions. Thus, the rule requires “maximum achievable control technology” (MACT) for such equipment. Our challenge was consolidated with those of other industry and environmental groups, under the caption above. Further details about the legal claims in this litigation will be filed with the court by May 2.

At the same time, these groups filed a petition with EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for area sources (boiler GACT, or generally available control technology) and commercial and solid waste incineration (CISWI) units.

This petition to EPA identified several problems that make the rules burdensome and unsupported by the facts or the law. For example, there are concerns about the definition of startup and shutdown, and startup work practices were incorporated into the new rules without giving key stakeholders adequate opportunity to comment. Important safety considerations for the regulated community were overlooked in the definitions. Additionally, the new rules fail to take account of the importance of encouraging efficient and cost effective use of resources. The fuel requirements in the rules do not incorporate national goals of safeguarding fuel diversity and the list of clean fuels is unduly narrow. Particular parameters used to measure compliance with the new rules need further clarification to insure consistency across the operating parameters. The petition also points out that EPA does not have legal authority to impose the energy assessment requirement included in the rules and that, in any event, the requirement is not supported by the record.

The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule on hazardous air pollutants issued by EPA on Feb. 1, 2013, entitled “National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers.” The rule was written to require "generally available control technologies" (GACT) or management practices to reduce emissions of hazardous air pollutants, taking into consideration the cost of achieving such reductions. Our petition, styled Council of Industrial Boiler Owners v. EPA, was consolidated by the court into the Louisiana Envtl. Action Network case. Further details about the legal claims in this litigation will be filed with the court by May 3.

At the same time, these groups filed a petition with EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for major sources (boiler MACT, or maximum achievable control technologies) and commercial and solid waste incineration (CISWI) units.

The NAM is a member of the Ozone NAAQS Litigation Group, which filed a petition for review 5/27/08 in the U.S. Court of Appeals for the D.C. Circuit challenging 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, and are expected to argue that the EPA did not follow the advice of their scientific advisers to issue a tougher standard. All the petitions have been consolidated under the caption, Mississippi v. EPA.

On 3/19/09, the D.C. Circuit granted an unopposed motion to vacate the briefing schedule and hold the consolidated Ozone NAAQS cases in abeyance while the new Administration considered whether to change the standards. In September, 2009, EPA reported that it was reconsidering the rule, and proposed revisions in January, 2010, for public comment. It intended to complete this process by the end of 2010. 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.

On Feb. 17, 2012, the court issued a briefing schedule calling for petitioners' briefs by April 17, EPA's response by July 2, intervenors' briefs supporting EPA by July 23, and final briefs by Aug. 27. Oral arguments are scheduled for November 16, 2012.

The Ozone NAAQS Coalition filed its brief in April 17. Key arguments include: (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 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.

On March 15, 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 current 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."

Further details about the legal basis for the challenge will become available when the initial statements of issues are due on April 17.

The NAM and other industry organizations filed a petition with a federal appeals court to review a final rule, issued by EPA on Feb. 7, 2013, on Commercial and Industrial Solid Waste Incineration (CISWI) units. The rule amends rules issued in 2011 relating to restrictions on materials that are used as fuels or ingredients in combustion units. Our petition, styled American Wood Council v. EPA, was consolidated by the court into the Portland Cement Association case. Further details about the legal claims in this litigation will be filed with the court by May 9. On April 1, 2013, we joined other business groups in a petition to EPA for administrative reconsideration of this regulation, along with two related rules involving air pollutants for area sources (boiler GACT, or generally available control technology) and major sources (boiler MACT, or maximum achievable control technologies).

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, and EPA will be providing status reports every 90 days. Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18, 2008, that concluded that PSD permits (for the Prevention of Serious 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. If the environmental groups 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.

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 has stayed the litigation.

On April 2, 2010, EPA completed its reconsideration of the Johnson memo and published a new "Subject to Regulation" notice that makes January 2, 2011 the date on which greenhouse gas emissions are regulated. On June 9, EPA asked the court to hold the case in abeyance while other litigation over its GHG regulation is 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. The EPA proposal might create inconsistent rulings, confusion and uncertainty, and is very inefficient.

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.

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.

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 is no construction ban in Texas, and EPA's intervention is 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, argues 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 will continue in force until the court makes a final decision on the challenge to the regulations.

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.

Oral arguments were held on May 7, 2013, before Judges Rogers, Tatel and Kavanaugh.

On April 29, 2011, the NAM joined with 12 other associations asking a federal court to review EPA's Boiler MACT (Maximum Achievable Control Technology) standard. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors. We filed formal petitions in federal court challenging the rules to ensure that, if EPA fails to reconsider its actions, an appeals court panel will have a chance to consider whether EPA acted within the law. The lawsuit, filed by a coalition of associations including the NAM, was consolidated with U.S. Sugar Corp. v. EPA (D.C. Cir.). A statement of legal issues in the case were filed on July 8. On August 3, the D.C. Circuit ordered this case to be held in abeyance indefinitely.

We also filed a suit challenging EPA's rule establishing stricter emissions limits on commercial and industrial solid waste incineration (CISWI) units. For details, see American Forest & Paper Ass'n v. EPA (D.C. Cir.).

On May 16, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules "until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier." A new effective date will be published "once delay is no longer necessary." EPA published its final rule on Jan. 31, 2013, which prompted further lawsuits from both the business and environmental communities. It is expected that this case will be consolidated into that one. Click here for the latest details.

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 utillities, 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, 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 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 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 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." It also said that it would stay the effectiveness of the current new source standards for three months, until November 2. See 77 Fed. Reg. 45968 (Aug. 2, 2012).