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American Chemistry Council v. EPA   (D.C. Circuit)

Risk Management Program litigation

The NAM joined with the American Chemistry Council, American Forest & Paper Association, American Fuel & Petrochemical Manufacturers, American Petroleum Institute and the Chamber of Commerce in asking a federal appeals court to review the EPA's new rule on Risk Management Programs under the Clean Air Act. The rule, published on Jan. 13, 2017, revises an existing rule that is designed to reduce chemical hazards and related accidental releases. The court will determine the validity of the new rule.

While the case is pending, the EPA will be considering the associations' Petition for Reconsideration of the rule. Our Feb. 28 petition and request for a 90-day stay argues that the final rule raises significant security concerns and compliance issues that will cause irreparable harm to manufacturers, requiring them to make available sensitive information that could expose plant vulnerabilities. The rule also imposes costly audit requirements for "each covered process" without justification, and the agency failed to conduct an adequate assessment of the costs and benefits.

The EPA delayed the effective date until Feb. 19, 2019, while it reconsiders the rule. This will give the agency time to review our concerns and will temporarily suspend the compliance burden.


Related Documents:
Petition for review  (March 13, 2017)
Petition to EPA for reconsideration  (February 28, 2017)

 

Environmental Comm. of the Fla. Elec. Power Coord. Grp. v. EPA   (D.C. Circuit)

Challenging the EPA's effort to amend state plans regarding emissions during startups, shutdowns and malfunctions

On June 12, 2015, the EPA published a rule entitled "State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Finding of Substantial Inadequacy; and SIP Calls for Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction." That is a complicated way of saying they responded to a Sierra Club petition by ordering state environmental enforcement plans to conform to their policies relating to excess emissions into the air when plant equipment is started up, shut down, or when it malfunctions (SSM events). The agency found that provisions in 36 state implementation plans (SIPs) are inadequate, in part because they contain provisions that provide an affirmative defense to emissions violations during SSM events.

The NAM is a member of the SSM Litigation Group, which filed a petition to review the EPA's final rule. 18 states filed similar challenges, as have various companies and business organizations. On March 16, 2016, the NAM and all the other industry petitioners joined in our main brief on the merits, arguing: (1) the EPA failed to justify its SIP call, (2) its prohibition on so-called "exemptions" from emission limitations are not supported, and (3) its prohibition of affirmative defenses by industry is not supported by the Clean Air Act or case law.

On March 25, 2017, proceedings in the case were suspended while the EPA reviews the rule. The agency will submit reports on the status of this review to the court every 90 days.


Related Documents:
Industry reply brief  (September 26, 2016)
Industry brief  (March 16, 2016)

 

Environmental Defense Fund v. EPA   (D.C. Circuit)

TSCA inventory reset intervention

The NAM and a group of other association filed a motion to intervene in the Toxic Substances Control Act (TSCA) lawsuit filed by the Environmental Defense Fund. The “Inventory Reset Rule” at issue here, sorts the master list of chemicals, called the TSCA Chemical Substances Inventory “TSCA Inventory,” based on whether the chemicals are active or inactive in commerce. If a chemical is not identified as active, it will be listed as “inactive.” After the Reset, it will be illegal to manufacture, import, or process chemicals designated on the Inventory as inactive. An adverse decision in this litigation would adversely impact companies who manufacture or use chemicals that will be classified, prioritized and evaluated under TSCA.


Related Documents:
Motion to Intervene  (October 2, 2017)

 

Murray Energy Corp. v. EPA   (D.C. Circuit)

Challenging 2015 ozone standard

The NAM and other associations filed a petition to review the EPA's 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 is overly burdensome for manufacturers. Further incremental improvements in ozone levels in many areas will be very difficult and expensive to achieve, since ozone levels are down more than 30 percent since 1980 and the previous standard is already stringent.

Joining in the petition for review with the NAM are the Chamber of Commerce, American Coke & Coal Chemicals Institute, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, Independent Petroleum Association of America, National Oilseed Processors Association, Portland Cement Association, and Utility Air Regulatory Group.

On Jan. 25, 2016, the NAM, our coalition partners, and several additional new coalition partners moved to intervene in a suit brought by the Sierra Club and other environmental groups that want to lower the standard even further. These cases have been consolidated.

On April 22, 2016, we filed our opening brief arguing the EPA failed to take adequate account of the impact of uncontrollable background levels of ozone in preventing achievement of the new standards; that the defects cannot be cured by the EPA’s reliance on alternative regulatory mechanisms; the EPA failed to take into account relevant contextual factors, including the adverse economic, social, and energy impacts of adopting these stricter standards; and the EPA did not provide a reasoned explanation for changing its conclusions drawn from the same basic underlying scientific evidence considered in the prior ozone standard revision.

On August 17, 2016, we filed our intervenor brief arguing that the environmental groups’ arguments that the EPA was required to make the ozone standard even more stringent do not have merit. The EPA is not required to set ozone levels that would prevent all adverse effects, but it must consider multiple factors in determining the correct level to protect public health. The EPA justified its decision not to make the ozone standard even stricter, and the environmental groups’ arguments that the standard should be stricter are inconsistent with the EPA’s actions. In addition, the EPA’s action concerning ozone permitting represented a reasonable exercise of its discretion to interpret the statute and should be upheld.

On Sept. 14, 2016, we filed our reply brief responding to the EPA's defenses to our challenges. We reaffirmed arguments made earlier in this case, focusing on the EPA's failure to account for the impact of background ozone on the ability of states to meet the requirements of the standard, its failure to consider the overall impact of the standard in the context of the public's risk tolerance, and its failure to provide adequate explanations for changing some of its conclusions regarding acceptable levels of ozone.

Oral argument, originally scheduled for April 19, 2017, was indefinitely suspended on April 11 while the Trump Administration reviews the 2015 ozone standard. On July 17, 2017, we filed a brief opposing a Motion to Intervene filed by the States of California, New York, Rhode Island, Vermont, and Washington; the Commonwealth of Massachusetts; the Delaware Department of Natural Resources & Environmental Control; and the District of Columbia (jointly “California Movants”). California Movants filed long after the 30-day deadline for filing, and the NAM opposed the Movants’ intervention on the grounds that permitting intervention now would violate established rules of procedure. The EPA also opposed the Motion to Intervene.


Related Documents:
Opposition Motion to Intervene  (July 17, 2017)
Industry Reply Brief  (September 14, 2016)
Intervenor Brief  (August 17, 2016)
Opening Brief  (April 22, 2016)
Statement of Issues  (January 25, 2016)
Motion to intervene in Sierra Club challenge  (January 22, 2016)
Shopfloor blog  (December 23, 2015)

 

North Dakota v. EPA   (D.C. Circuit)

Challenge to the EPA's New Source Performance Standards (NSPS) for greenhouse gases from electric utilities

The Environmental Protection Agency issued a set of regulations in October 2015, governing greenhouse gas emissions from electric power plants. One covered existing units, and is the subject of separate litigation here. The other sets carbon pollution standards for new, modified and reconstructed power plants.

On December 18, the NAM and other associations in our coalition filed a petition for review in a federal appeals court. Our case was consolidated into 13 cases previously filed by North Dakota and other states and petitioners.

We are concerned that the EPA's new rules will eliminate coal-fired power plants from the mix of energy sources available to manufacturers, raising costs and threatening the reliability of the electric grid. As consumers of one-third of our nation's energy, manufacturers are put at a competitive disadvantage by this regulation.

The NAM and a variety of other industry groups, power companies and unions filed our main brief on the merits on Oct. 13, 2016. In our brief, we argue that the EPA exceeded its authority by determining that the best system of emission reduction for new coal-fired power plants is to require carbon capture and storage in deep underground saline formations. This process will require pipelines and the construction of deep new wells at locations with suitable geologic formations, involving costly and energy-intensive work. The EPA cannot establish that such formations are available throughout the country.

We also said that the EPA has not met the requirement that it show that the new emissions standard is achievable, because the technology required to achieve it is not demonstrated or available for full-scale application on a widespread scale. Instead, the regulation is based on Department of Energy engineering estimates of a hypothetical power plant.

The EPA’s analysis of the best system of emission reduction for modified and reconstructed steam generating units was minimal, and insufficient to satisfy the statutory requirements for imposing new regulatory requirements. It admitted that it did not have information regarding design factors and operation and maintenance practices that must form the basis for determining that a performance standard is achievable.

On March 28, 2017, the EPA moved to hold this case in abeyance pending EPA's review of the rule pursuant to an Executive Order from President Trump. Our coalition filed a brief in support, and on March 28, the court agreed. Status reports will be filed every 30 days, and the court ordered supplemental briefing by May 15 on whether the case should be remanded to the EPA rather than held in abeyance.


Related Documents:
Brief on the merits  (October 13, 2016)
Preliminary statement of issues  (January 25, 2016)

 

North Dakota v. EPA   (D.C. Circuit)

Challenging the EPA's denial of reconsideration of Clean Power Plan

On 2/16/17, the NAM and other associations moved to intervene is 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 has been filed.


Related Documents:
Motion to Intervene  (February 16, 2017)

 

Sierra Club v. EPA   (D.C. Circuit)

Challenge to affirmative defense for equipment malfunctions

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 12/17/14, the court held this case in abeyance until the EPA completes the rules revision process.


Related Documents:
NAM Motion to Intervene  (July 17, 2014)

 

Sierra Club v. EPA   (D.C. Circuit)

Boiler MACT reconsideration rule

This is another in a series of cases challenging emissions limits. The EPA granted a petition from the Sierra Club and others to reconsider parts of its rule for new and existing 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. However, the rule does not require a numerical standard during boiler startup and shutdown given the fact that is not “feasible” to determine pollution levels during these times.

The EPA issued final revisions in its 2015 Boiler Rule, and the Sierra Club sued. Manufacturers would bear a large burden and financial hardship if the Sierra Club prevails in its challenge to this rule.

The NAM was granted leave to intervene in support of the EPA and the 2015 Rule. There are two primary issues in the case: (1) whether the EPA properly established a minimum standard level of 130 parts per million 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.

Oral arguments were held Sept. 15, 2017.


Related Documents:
NAM intervenor brief  (November 16, 2016)
NAM motion to intervene  (February 18, 2016)

 

West Virginia v. EPA   (D.C. Circuit)

Challenging EPA's Clean Power Plan

On the day that the EPA's Clean Power Plan regulations were published in the Federal Register, twenty-six states filed suit. The suits are expected to repeat many of the arguments made in similar suits filed by various states and coal companies earlier this year. Those cases are summarized here, and were dismissed by the court as premature.

The NAM and a coalition of other national trade associations filed suit later that day, along with a motion asking the court to stay, or suspend implementation of, the rule until the legal issues are resolved in court.

The NAM filed extensive comments during the development of the rule, but they were largely ignored. Instead, the EPA came out with a rule that will lead to a tremendous change in the power industry and beyond, restricting fuel resources and reducing the reliability of the electric grid.

Manufacturers are committed to reducing greenhouse gases and have helped bring about a more than 10% reduction in them since 2005. the EPA's approach will drive up energy rates and make it increasingly difficult for manufacturers to make things and create jobs in the United States. We believe that we have a strong case that the regulation exceeds the EPA's authority under the Clean Air Act and that the courts will step in to restrain the agency.

On Jan. 21, 2016, the D.C. Circuit denied motions to stay the regulation pending the outcome of the litigation, but granted expedited briefing with oral arguments scheduled for June 2, 2016. West Virginia and 28 other states and state agencies filed an application for a stay in the U.S. Supreme Court on Jan. 26. In an unprecedented ruling, the Supreme Court granted the stay on Feb. 9. Click here for details.

All petitioners, including the NAM, numerous states, electric utilities and other business groups, filed a joint brief on Feb. 19 detailing the legal arguments against the EPA’s rule. First, we argued that the Clean Air Act does not authorize the EPA to restructure the power sector, invading a traditional state regulatory domain without clear congressional authorization. In addition, the regulation mandates emissions reductions that go beyond what any stationary source of emissions can achieve, and mandates that the owners and operators of those sources reduce or cease work and shift the generation of electricity to another power plant.

Second, the Clean Air Act expressly prohibits the EPA from imposing regulations under Sec. 111 on facilities that are already regulated under Sec. 112, which is the case here. This provision was designed to prevent duplicative or otherwise inefficient regulation.

Third, the regulation bars the authority granted to states to consider the remaining useful life of a source when establishing its standards, thus taking into account the tremendous costs associated with switching fuel sources away from fossil fuels.

Finally, we argued that the regulation violates states’ rights by commandeering their authority over intrastate generation and transmission of electricity and leaving them to bear the brunt of citizen complaints about increased costs and lost jobs.

We filed a reply brief on 4/22/16 reiterating and expanding on these arguments. Oral arguments, originally scheduled before a 3-judge panel for June 2, were held on September 27 before the entire (en banc) court (10 judges). This is a sign of the importance of the case to the D.C. Circuit judges, and of the need for a quicker resolution of this case than most. The arguments, scheduled to last under 4 hours, turned out to take 6 hours and 45 minutes because of the many issues and active questioning from the judges.

In the March, 2017, EPA moved to hold this case in abeyance in light of its announcement that it had started a review of the rule pursuant to an order from President Trump. Our coalition filed a supporting response brief, and the court agreed, suspending the case on March 28, 2017. Periodic reports from EPA will be filed, and the parties filed briefs on whether the case should be sent back to the agency rather than held in abeyance. Our coalition supported holding the case in abeyance, preserving our legal rights in the challenge and keeping the nationwide stay in effect.


Related Documents:
NAM response in support of abeyance  (April 6, 2017)
NAM reply brief  (April 22, 2016)
NAM merits brief on core legal issues  (February 19, 2016)
NAM Motion for Stay  (October 23, 2015)
NAM Petition  (October 23, 2015)
NAM press release  (October 23, 2015)

 


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