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

Risk Management Program litigation

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 would impose 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. A final rule is expected in 2019. The litigation remains stayed pending the final rule.

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) -- active

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

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.

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


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

Air permitting streamlining

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.

Related Documents:
NAM Motion to Intervene  (June 25, 2018)
NAM brief  (May 31, 2018)


Meritor, Inc. v. EPA (D.C. Circuit) -- active

Superfund vapor intrusion mitigation

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.

Related Documents:
NAM brief  (April 8, 2019)


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

Challenging 2015 ozone standard

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. Oral argument was heard December 18, 2018, with a ruling from the court possible in 2019.

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)


North Dakota v. EPA (D.C. Circuit) -- active

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

In addition to the Clean Power Plan rule for existing power generators, the EPA in 2015 also issued a new Clean Power Plan rule governing new power plants. The MCLA also challenged that rule. In 2017, the D.C. Circuit held the rule in abeyance while the current administration considers whether to revise or rescind the rule. According to the EPA’s most recent status report with the court, the agency expects to propose a replacement rule for public notice and comment soon. The litigation over the 2015 rule will likely remain stayed during that process.

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


North Dakota v. EPA (D.C. Circuit) -- active

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

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.

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


Sierra Club v. EPA (D.C. Circuit) -- active

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)


West Virginia v. EPA (D.C. Circuit) -- active

Challenging EPA's Clean Power Plan

In 2015, the NAM challenged the EPA’s Clean Power Plan, a rule that went beyond the EPA’s legal authority to regulate 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 now replaced by the Affordable Clean Energy Rule, the parties moved to dismiss the case.

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)