ISSUE: Environmental Policy Alert

Looming Funding Lapse Could Intensify ‘Serial’ EPA Shutdown, Critics Say

The impending government shutdown could grant extensive powers to the White House Office of Management and Budget (OMB) to accelerate its ongoing effort to reshape EPA’s staffing, budget and other activities, say former agency officials who oppose such efforts. At a Sept. 29 webinar held in advance of a potential funding lapse on Oct. 1, members of the Environmental Protection Network (EPN) of former officials told reporters that the shutdown could add fuel to what they characterized as an ongoing...

CEQ Updates NEPA Guide To Reflect High Court Ruling, New Opt-In Fee

The White House Council on Environmental Quality (CEQ) has issued updated National Environmental Policy Act (NEPA) guidance for federal agencies, adding new provisions to reflect a recent Supreme Court ruling that narrowed the scope of agencies’ reviews and bolstered their deference, as well as a new fee for project developers to speed reviews. CEQ’s Sept. 29 guidance , as well as an associated template , also underscores officials’ efforts to ensure consistency across federal agencies in the wake of the...

Eyeing Coal Boost, EPA Seeks To Ease Haze Rules, Power Plant ELGs

EPA is floating plans to scale back its regional haze program governing air quality in Class I areas such as national parks and delay effluent limitation compliance deadlines for coal-fired power plants, highlighting Trump administration efforts to bolster the coal sector. Together with Interior Secretary Doug Burgum and Energy Undersecretary Wells Griffith, Administrator Lee Zeldin Sept. 29 signed the two regulatory plans at a White House National Energy Dominance Council event aimed at “advancing America’s beautiful clean coal.” “We can...

Sen. Markey Warns EPA’s NSR ‘Construction’ Guidance Likely Unlawful

Sen. Ed Markey (D-MA) is questioning EPA over its recently changed guidance that excludes some industry activities from the definition of “construction” that would otherwise trigger new source review (NSR) air permitting, challenging Administrator Lee Zeldin to justify the legal rationale for the move, which Markey warns is likely unlawful. “Your recent reinterpretation of the Clean Air Act’s New Source Review (NSR) permitting requirements will translate to direct harm to human health here in the United States. By allowing pre-construction...

Legal Risks Seen Growing As EPA Eyes Quick Repeal Of GHG Risk Finding

EPA’s rapid schedule for finalizing its greenhouse gas endangerment finding rescission could exacerbate the effort’s legal vulnerability, observers say, potentially further imperiling the sweeping move to deregulate GHGs that sources have already characterized as a high-risk venture. “I think some errors due to the schedule are inevitable,” a former EPA official tells Climate Extra . “The issue is whether they will be fatal or not. We can’t know that till we see the final product.” Questions about the impact of...

GOP AGs Offer Path To Scrap Mass. But Doubt Need Given GHG Risk Repeal

Over two dozen GOP attorneys general are offering a path for the Supreme Court to scrap its 2007 Massachusetts v. EPA ruling ratifying EPA’s authority to regulate greenhouse gases, though they claim this is not necessary for EPA’s proposed GHG finding repeal because the plan is consistent with the “best read” of the Clean Air Act CAA). “[L]egal developments since Massachusetts have shown that GHGs like carbon dioxide are not ‘air pollutants’ under [Clean Air Act section] 302(g),” in...

EPA Cites 3rd Circuit Ruling To Justify End Of NSR ‘Reactivation Policy’

EPA is citing a 2023 appellate ruling to justify its decision ending its years-old source “reactivation” policy that determined whether an idled facility needs a fresh new source review (NSR) permit, under its new policy that makes acquisition of a new permit unnecessary unless a reactivated source would emit more than it did before being idled. EPA Administrator Lee Zeldin Sept. 15 announced the end of the prior reactivation policy, alongside other measures aimed at easing air permitting for industry...

EPA Formally Reinstates NSR Policy Barring ‘Second Guessing’ Of States

EPA has formally reinstated its policy from the first Trump administration barring the agency from “second guessing” states’ decisions on new source review (NSR) permitting, after the Biden EPA scrapped a 2017 memo from then-Administrator Scott Pruitt that first prohibited such “second-guessing.” EPA Administrator Lee Zeldin signed the Sept. 15 memo reinstating the policy. It came the same day that he announced it at a White House event, alongside other measures aimed at easing air permitting for industry as part...

Padilla Eyes Relief For PFAS Passive Receivers As Bill Remains Uncertain

Sen. Alex Padilla (D-CA), a member of the Senate environment committee, is signaling he is leaving the door open to supporting a bill limiting Superfund liability for a narrow set of “passive receivers” of PFAS contamination, a sign that any effort to enact such protections could win bipartisan support though the panel has yet to advance legislation. Padilla “recognizes the importance of this issue and wants to work with other [Environment and Public Works Committee (EPW)] members to develop legislation...

Industry Warns Court Ruling Could Allow ‘Effectively Unlimited’ NRD Claims

Industry officials are warning that the recent 9th Circuit ruling allowing Superfund natural resource damages (NRD) claims connected to the cultural uses of contaminated land could open the door for state, federal and tribal trustees to pursue “effectively unlimited” claims for damages. “Companies may need to prepare for more and broader claims, potentially driving higher settlement demands and extended litigation,” lawyers at K&L Gates warn in a Sept. 22 post . “Project sponsors should carefully consider how to address losses...

Groups Applaud EPA’s Good Samaritan Guide But Seek Clear Definitions

Industry groups and water utilities are applauding EPA’s draft guidance implementing its congressionally authorized pilot program that limits environmental liabilities for so-called Good Samaritans that seek to voluntarily clean up hardrock mine sites, though they urge the agency to revise certain definitions to provide clarity. The National Mining Association (NMA) and American Exploration and Mining Association (AEMA) filed Sept. 12 comments on EPA’s guidance, touting the bipartisan legislation establishing the program as providing “conservation, mining, and local stakeholders the opportunity...

Environmentalists Mobilize To Fight AI Data Center’s Environmental Risks

Environmental groups are mobilizing to oppose technology companies’ plans, often with support of state and local officials, to build massive data centers over multiple concerns, including their huge energy and water demands, potential high costs for other power consumers, and in some cases attempts to evade federal air permitting requirements. Already, they have successfully pressured xAI, Elon Musk’s artificial intelligence (AI) company, to remove 20 gas turbines from one facility and seek air permits for the remaining turbines’ emissions, while...

Chamber Warns Against SDWA Feasibility Precedent In Lead Pipe Suit

The U.S. Chamber of Commerce is backing water sector arguments that EPA’s Biden-era rule requiring near-total replacement of lead service lines (LSLs) by 2037 is infeasible, overly expensive and illegally mandates replacement of lines that run underneath private property. In its Sept. 19 amicus brief in the case, American Water Works Association (AWWA) v. EPA , the group also underscores its fears that EPA’s reading of statutory feasibility requirements, if applied more broadly, would “have disastrous consequences for the Chamber’s...

EPA Floats Proposal To Scale Back Biden-Era TSCA Framework Rule

The Trump EPA is proposing to overhaul major portions of the Biden-era rule outlining how the agency evaluates chemical risks under TSCA including eliminating a requirement to make a single, “whole chemical” risk determination and revising how the agency will consider occupational exposure controls. “In this action, EPA proposes to rescind or revise certain 2024 amendments to the procedural framework rule to effectuate the best reading of the statute and ensure that the procedural framework rule does not impede the...

Environmental Groups Charge EPA Legacy CCR Delays Violate RCRA, APA

Environmentalists are charging that EPA’s proposal to extend compliance deadlines in the Biden-era rule governing legacy coal combustion residuals (CCR) surface impoundments violates the Resource Conservation and Recovery Act’s (RCRA) protectiveness standard and is arbitrary and capricious, teeing up a likely legal challenge. A coalition of eight environmental groups filed Sept. 15 comments on EPA’s proposed rule that would delay compliance deadlines in the agency’s rule governing legacy CCR surface impoundments and CCR management units (CCRMU), defined as any area...

EPA’s WOTUS Plan Appears Aimed At Quelling Industry, State Concerns

The Trump EPA’s upcoming plan to revise the definition of “waters of the United States” (WOTUS) appears aimed at quelling concerns raised by industry groups and states over the Biden-era rule, broadening the scope of certain existing exclusions and incorporating flexibilities to account for states with differing hydrology. The agency’s draft plan, currently under review by the Office of Management and Budget (OMB), establishes explicit definitions on such hot-button terms such as “continuous surface connection” between waterbodies and whether they...

EPA Plans To Weigh Costs In Future CERCLA Listings, Sparking Criticism

EPA’s plan to develop a framework rule governing future designations of “hazardous substances” under the Superfund law, which the agency announced it will craft after deciding to retain the Biden-era rule designating two PFAS, is raising concerns that it will adopt cost as a factor, which one environmentalist says is at odds with the law. The agency announced its plan for the framework rule alongside its surprise decision to retain the landmark rule designating two legacy per- and polyfluoroalkyl substances...

Zeldin Revives Trump NSR Policy Aimed At Barring EPA ‘Second Guessing’

EPA Administrator Lee Zeldin says the agency has re-issued a policy from the first Trump administration aimed at barring officials from “second guessing” states and industry when deciding whether “major source” new source review (NSR) air permits are necessary for new or modified facilities, the latest in a series of NSR revisions he has announced. Zeldin announced the 2017 policy’s reinstatement , reversing the Biden administration 2022 rescission , during a Sept. 15 White House meeting with industry groups, key...

House Panel Weighs Bills To Ease Clean Air Permits, Amid EPA’s NSR Push

Republicans on the House Energy and Commerce Committee are weighing a series of bills to ease the procedural and substantive burdens industry and states face when seeking and complying with Clean Air Act permits, even as EPA advances guidance and rules to achieve similar goals for the new source review (NSR) program in particular. The committee’s environment panel is holding a Sept. 16 legislative hearing where lawmakers will consider five bills that seek to ease burdens on regulators and regulated...

EPA Proposes To Largely Scrap Industrial GHG Reporting Requirements

EPA is seeking to repeal reporting requirements for virtually all industrial sectors currently subject to its Greenhouse Gas Reporting Program (GHGRP), despite a congressional mandate to create such a program, and to suspend until 2034 most “Subpart W” oil and gas sector rules while also repealing mandates for gas distribution operations. The proposal follows through with EPA Administrator Lee Zeldin’s March pledge to “reconsider” the program -- and subsequent reports that EPA would virtually eliminate it -- even as critics...

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