The Pendulum Swings Back Again on Clean Air

In June 1989, then-President George H. W. Bush proposed revisions to the Clean Air Act designed to reduce what were perceived as three of the largest threats to the environment at the time: toxic air emissions, acid rain, and urban air pollution.

More specifically, Section 112r of what became the Clean Air Act Amendments of 1990 required the EPA to publish guidance and regulations for chemical accident prevention by entities using compounds that posed the greatest risk of harm from accidental releases. These regulations were …

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Supreme Court Requires Specific Congressional Authorization For Regulations That Give Federal Agencies “Extravagant” Power Over The National Economy

As regular readers of this blog know, we have been keeping tabs on the Supreme Court’s review of West Virginia v. Environmental Protection Agency, a case addressing how broadly executive agencies can interpret the legislation authorizing their activities.  Today, the Supreme Court issued its opinion on the matter, holding that the “major questions” doctrine precluded the EPA from using the Clean Air Act to require energy producers to change the type of energy generation they use.

Under Section 111(d) of the Clean Air Act, …

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Chevron Deference on Life Support?

The U.S. Supreme Court on June 15 issued a unanimous reversal of a lower appellate court, and in which, ruling against the federal government, struck down a Department of Health and Human Services rule significantly reducing Medicare prescription reimbursements to hospitals traditionally serving low-income patients.

Although the 2018 rule did not, on its face, seem to have anything to do with environmental rules or regulations, environmental lawyers, activists, and probably the Environmental Protection Agency itself closely watched the progress of American Hospital Association v. Becerra

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State tort damages loom for companies plausibly connected to climate change

In April, various California communities moved one step closer to holding energy companies liable for damage to public infrastructure allegedly caused by climate change.  The communities claimed this damage occurred due to the companies’ use of and advocacy for fossil fuels despite the companies’ understanding of those fuels’ negative environmental impacts.

Local governments argue that compensation of climate-related infrastructure damage, for which they bear the cost, is a parochial concern belonging in state court. In County of San Mateo v. Chevron, the Ninth Circuit—like …

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California’s Clean Air Act Waiver Targeted in New Lawsuit

Ohio, along with sixteen other states, sued the Environmental Protection Agency on Friday last week, over its March 14, 2022 decision to reinstate a waiver allowing the nation’s most populous state California, under its Advanced Clean Cars Program, to enact tougher vehicle emission standards than those set by the federal government.[1][2]

In 1966, California enacted the nation’s first tailpipe emissions standards in light of its then-severe pollution problems. That was followed in 1970 by the creation of the Clean Air Act, which gave …

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Companies Face State Court Claims for Climate Damage After Circuit Courts Hold That Such Claims Are Not “Inherently Federal”

Federal appeals courts in Maryland and Colorado have sent lawsuits seeking to hold energy companies responsible for climate change back to state court even after the U.S. Supreme Court directed the Fourth Circuit to take a second look in the Maryland case.

In Maryland, the City of Baltimore seeks millions of dollars in damages for, among other things, energy companies’ alleged violations of the Maryland Consumer Protection Act that affected climate change. In Colorado, the City of Boulder and a couple of Colorado counties also …

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EPA Puts Ethanol Back in Play to Keep Gas Prices at Bay

On April 29, 2022, the U.S. Environmental Protection Agency officially suspended the ban on sales of gasoline blends with a higher concentration of ethanol. This suspension came two weeks after President Biden’s vow to lift the ban in order to counteract the increased gas prices attributed to Russia’s incursion into Ukraine. The suspension went into effect on May 1.

E15, or fuel with 15% ethanol, is traditionally banned during the warmer months—June through October—in an effort to combat the production of smog. In the current …

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The Ethanol Waiver for E15 Is Not a Reason to Fill Up

Although ethanol is one of the earliest biotechnologies, it wasn’t until the energy crisis of the 1970s that ethanol was widely used as an additive to gasoline. Back then, concerns about the price of fuel and the impact of leaded gas on the environment led to a search for less expensive and more environmentally friendly alternatives. Ethanol seemed to fit both criteria. Today, approximately 90% of the gasoline sold in the United States contains ethanol—and this ethanol is largely produced from corn. Corn is used …

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SCOTUS to Decide Whether Congress or the EPA has the Power to Regulate Carbon Emissions – Part II

On the heels of oral argument before the U.S. Supreme Court, we provide an update to a prior ELM post whether the U.S. Environmental Protection Agency’s has the ability to regulate carbon emissions from coal- and gas-fired power plants under the Clean Air Act. 

Various theories abound that the court could depend on to support its decision, which could have significant reverberating impacts.  Among the possibilities, from the most earth-shattering to the least are: (1) the non-delegation doctrine; (2) the major question doctrine; (3) statutory …

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Mercury No Longer Rising

A decade ago, as part of a concerted effort to reign in industrial pollution, the Obama-era Environmental Protection Agency (EPA) promulgated the mercury and air toxics standards (MATS) pursuant to its authority under the Clean Air Act (CAA). The purpose, as implied by the title, was to limit the amount of mercury and other toxins released into the air by coal-fired power plants. It was heralded by proponents and environmentalists as a large step forward in reducing the risk of heart attacks and cancer, and …

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