The NCSL Blog


By Kristen Hildreth and Ben Husch

Predicting the weather a week from today often involves a high degree of uncertainty—will it actually be 85 and sunny, or will there be thunderstorms and high winds?

Power plant emitting steamThe likelihood of the U.S. Environmental Protection Agency (EPA) being taken to court upon issuance of a major final rule, however, does not hold the same level of uncertainty.

As the agency develops a rule, select groups often feel the promulgated rule does not go far enough to protect the environment, while others feel that the rule goes too far—often leading to legal action from one side, or both, and on occasion, simultaneously.

It can often be months, if not years, before a major final rule completes its journey through the courts. This journey, when it intersects with the inauguration of a new president, can be further extended, especially if the new administration’s views differ substantially from the former. It comes as no surprise then, following the inauguration of President Donald Trump, that EPA began the process of updating its position in several cases before federal courts to reflect the views of the new administration.

These views were articulated by the administration in two separate executive orders, Promoting Energy Independence and Economic Growth, and Enforcing the Regulatory Agenda. Following this direction from the president, EPA contacted the courts on a multitude of cases with one resounding request—hold all associated litigation in abeyance, or issue a continuance of oral argument. Over the past few weeks, several courts have responded to EPA’s filings.

  • Clean Power Plan (CPP): Final Rule—Existing Sources , and Final Rule—New, Modified, and Reconstructed Sources. The former sets carbon pollution standards for existing power plants under the Clean Air Act (CAA) section 111(d), and the latter sets carbon pollution standards for new, modified and reconstructed power plants under CAA section 111(b). The U.S. Court of Appeals heard oral arguments en banc in September 2016 with a decision expected early in 2017 regarding standards for existing power plants. Following the president’s executive order on “Promoting Energy Independence,” EPA requested that the court defer further judicial proceedings while the agency reviewed the rule. The court granted EPA’s motion and will hold the case in abeyance for 60 days. Similar to the existing plant regulation, EPA requested that the court afford the agency “the opportunity to fully review” the rule concerning new, modified and reconstructed power plants. The court responded, removing the cases from the oral argument calendar pending disposition of the motion to hold cases in abeyance. EPA announced that it is reviewing both standards for existing plants, and for new, modified or reconstructed plants, and, if appropriate will initiate proceedings to suspend, revise or rescind the rules.
  • Waters of the United States (WOTUS): Final Rule—Clean Water Rule: Definition of ‘Waters of the United States,’ which defines WOTUS as used in the Clean Water Act to determine the scope of federal authority to regulate such water, and when states, local governments and others must seek federal permits to develop land because it contains WOTUS. Following the president’s order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule,” the administration requested the U.S. Supreme Court hold litigation over whether a federal district court, or a federal court of appeals, has jurisdiction to rule whether WOTUS violates the Clean Water Act. The Supreme Court denied the administration’s request. In taking steps to comply with the EO, EPA held a federalism consultation on April 19, which NCSL attended, regarding the administration’s future actions concerning the rule. The consultation provided an overview of potential changes under consideration for WOTUS, and indicated that the agency would first rescind the current definition, and recodify the 1986 definition and subsequent guidance, and then develop a new rule consistent with the direction provided in the executive order. For more information on the SSupreme Court's denial see NCSL’s Blog, and for information on the order see NCSL’s Info Alert.
  • Effluent Limitations Guidelines (ELG): Final Rule—Steam Electric Power Generating Effluent Guidelines, which sets federal limits on the levels of toxic metals in wastewater that can be discharged from power plants. In March and April of this year EPA received petitions to reconsider the rule, and recently stated the agency believed it was “appropriate and in the public interest to reconsider the final rule,” after which, the agency  announced an administrative stay of the compliance dates in the rule. EPA requested the court stay pending litigation on the rule for 120 days, by which time the agency “intends to inform the court of the portions of the rule, if any, that it seeks to have remanded to the agency for further rulemaking. The court granted the requested stay, and gave challengers the right to weigh in, if after 120 days, the agency moves to rescind the rule.
  • Mercury and Air Toxics Standards (MATS) for Power Plants: Final Rule—Supplemental Finding to Regulate Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, which explains how EPA has taken cost into account in evaluating whether it is appropriate and necessary to set standards for emissions of air toxics from coal-and oil-fired power plants. It finds that it is indeed appropriate and necessary to regulate emissions from such plants. EPA requested the court postpone oral arguments to “give the appropriate officials adequate time to fully review” the finding, however, the court has not yet responded to the agency’s request. The court granted EPA’s request, and ordered EPA to provide status updates every 90 days on the agency’s review of the supplemental finding.
  • National Ambient Air Quality Standards (NAAQS): Final Rule—2015 National Ambient Air Quality Standards for Ozone, which lowered NAAQS for ozone to 70 parts per billion (ppb) from 75 ppb in the 2008 rule. The court granted a request from EPA, postponing oral arguments previously scheduled for April 19, and held the case in abeyance pending further order of the court. The court also ordered the agency to provide updates every 90 days on its progress in reviewing the standard, as well as notify the court “promptly” if the agency decided to repeal or modify the standard.

Although it remains unclear how the above cases will unfold as the administration clarifies its positions, one aspect is certain—many of these cases may takes months if not years to fully resolve. Stay tuned to NCSL for any further changes or actions by the administration or courts.

For more information on EPA’s filings, or questions on the regulations and EO’s mentioned above, please contact NCSL staff Kristen Hildreth or Ben Husch.

Kristen Hildreth is a policy associate with NCSL's National Resources and Infrastructure Committee. Ben Husch is a senior director with NCSL’s National Resources and Infrastructure Committee.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.