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The  Court of Appeals for the D.C. Circuit determined that, under the Clean Air Act, the EPA lacked authority to stay implementation of a new rule on Greenhouse Gas (GHG) Emissions. In Clean Air Council v. Pruitt, the Court  found that the stay was arbitrary, capricious and in excess of the authority of the EPA Administrator.

In June 2016, the then EPA administrator issued a rule regarding leaks of methane and other oil and gas pollutants. The rule required,  among other things, an “initial monitoring survey” be conducted by June 3, 2017. In April, 2017 the new EPA administrator, Scott Pruit, issued a letter indicating the EPA would reconsider the rule and intended to issue a 90 day stay of the rule, as permitted under the Clean Air Act (CAA).  The required notice of reconsideration was published on June 5, 2017, two days after the initial monitoring was to have been completed. The notice provided for the following reconsideration and 90 day stay:

“…reconsideration on four aspects of the methane rule: (1) the decision to regulate low-production wells, (2) the process for proving compliance by “’alternative means,’” (3) the requirement that a professional engineer certify proper design of vent systems, and (4) the decision to exempt pneumatic pumps from regulation only if a professional engineer certified that it was “’technically infeasible’” to route such pumps “’to a control device or a process.’” 82 Fed. Reg. at 25,731–32. In addition, the notice “’stay[ed] the effectiveness of the fugitive emissions requirements, the standards for pneumatic pumps at well sites, and the certification by a professional engineer requirements’” for 90 days “’pending reconsideration.’” 82 Fed. Reg. at 25,732. The notice explained that the stay had gone into effect on June 2, 2017—that is, three days before the notice was published in the Federal Register. 82 Fed. Reg. at 25,731.”

However, on June 16, 2017 another notice was issued advising of the intent to reconsider the entire 2016 rule and to extend the stay for two years. After the suspension, several environmental groups brought the action seeking alternatively a stay or  vacating the actions of the EPA Administrator, on the grounds that the: “…EPA’s stay violates CAA section 307(d)(7)(B) because “’all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period.’”

The EPA and industry parties argued that the stay and reconsideration was not a final agency action and therefore the Court lacked jurisdiction to review it. The Court concluded it does have jurisdiction due  to the nature of the action.

“…EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.”

The Court noted that, as the initial monitoring was to be completed by June 3 and repairs of leaks performed within thirty days of June 3, with potential penalties of non-compliance, “[t] he stay—which EPA made retroactive to one day before the June 3 compliance deadline—eliminates that threat, see 82 Fed. Reg. at 25,731, and thus relieves regulated parties of liability they would otherwise face.”

The Court went on to say that the EPA’s argument that the Court could impose a stay upon a regulation being imposed but could not prevent the EPA’s stay of a regulation, would have a “perverse result”. It further noted that the CAA provides specific criteria be met in order to permit the stay of a final rule. The test is ” that it was “’impracticable to raise’” an objection during the public comment period and the objection is “’of central relevance to the outcome of the rule.’” Only when these two conditions are met does the statute authorize the Administrator to stay a lawfully promulgated final rule.”

In addressing the EPA’s lack of authority to issue the stay in this instance the Court held:

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Despite the President’s decision to do nothing about Climate Change and to outright reject the Paris Climate Accord, a group of states, cities, businesses and universities have decided to do what they can to fulfill the pledge the federal government has now decided to reject.  As noted in an article in the New York Times, the as yet unnamed group has reached out to the United Nations seeking to carry out the pledges made by the United States as part of the Paris Accord, during the Obama administration.

As noted in a another article, published by NPR, summarizing the Paris Agreement and its goals:

“Representatives from 196 nations made a historic pact on Dec. 12, 2015, in Paris to adopt green energy sources, cut down on climate change emissions and limit the rise of global temperatures — while also cooperating to cope with the impact of unavoidable climate change.

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In reversals of previous positions taken by the Environmental Protection Administration (EPA), on April 28, 2017 the EPA announced that it took down information on climate change, previously placed on its Website, to “update” language. On the same date the EPA was also successful in having the U.S. Court of of Appeals for the District of Columbia Circuit  hold in abeyance an  action challenging Obama Era clean air regulations, while the EPA reviews the dismantling of those regulations.

On Friday the EPA issued a statement indicating:

“EPA.gov, the website for the United States Environmental Protection Agency, is undergoing changes that reflect the agency’s new direction under President Donald Trump and Administrator Scott Pruitt. The process, which involves updating language to reflect the approach of new leadership, is intended to ensure that the public can use the website to understand the agency’s current efforts. …The first page to be updated is a page reflecting President Trump’s Executive Order on Energy Independence, which calls for a review of the so-called Clean Power Plan. Language associated with the Clean Power Plan, written by the last administration, is out of date. Similarly, content related to climate and regulation is also being reviewed.”

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The President released the proposed Federal budget  this week, which carries recommendations that funding for numerous programs relating to combating climate change be unfunded. As reported by Bloomberg News, in addition to cuts in a number of other program, the following climate change and energy efficiency related programs will be unfunded under the newly proposed budget:

“Global Climate Change Initiative

◦ Provides financial assistance for global climate change initiatives in developing countries.

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The National  Oceanic and Atmospheric Administration (NOAA) has been issuing a “Report Card” noting temperatures, ice melt, biodiversity and other issues relating to the status of the Arctic since 2006. The 2016 Report Card was recently issued reflecting additional evidence of the impacts of climate change.

“Observations in 2016 showed a continuation of long-term Arctic warming trends which reveals the interdependency of physical and biological Arctic systems, contributing to a growing recognition that the Arctic is an integral part of the globe, and increasing the need for comprehensive communication of Arctic change to diverse user audiences.”

Highlights of the report include:

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The interagency Council on Climate Preparedness and Resilience issued a report outlining opportunities to coordinate among federal agencies, along with state and local stakeholders in developing resiliency strategies. The report identifies three “themes” for implementing resilience in the face of climate change.

“Theme 1: Advancing and applying science-based information, technology, and tools to address climate risk. The Obama Administration has worked to connect the best-available climate science, data, and tools to communities and organizations throughout the Nation. The Federal Government can continue its critical role in this work through advancing observations, research, modeling, and innovative technology development, and communicating and translating information to support decision making. Opportunities within this theme are the following:

 Improve awareness and dissemination of climate information

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In October the State of Washington will implement a program to require reduction of Green House Gas (GHG) emissions. The State Department of Ecology issued a new rule last week requiring a gradual reduction in emissions for those who, starting with 2017,  emit 100,000 metric tons or more of carbon pollution.  The threshold for requiring compliance gradually reduces until 2035. The “Covered GHG Emissions” include those from stationary sources, petroleum producers and importers  and natural gas distributors.

The rule requires calculating emissions and keeping records for no less than ten years. There are provisions that permit trading reduction of carbon emissions called Emission Reduction Units (ERUs).

“WAC 173-442-140 Exchanging emission reduction units. Covered parties may transfer ERUs under the conditions in this section
(1) Required documentation.
(a) Documentation of an ERU transfer may consist of contractual arrangements, memoranda of understanding, or other similar records with sufficient detail to document the transfer of the ERU from one covered party to another.
(b) The transfer of ERUs occurs between accounts in the registry established in WAC 173-442-230.
(2) Tracking emission reduction units. The covered party must document each transfer of an ERU in the compliance report in a format specified by ecology and in the registry established in WAC
173-442-230.
(3) Role of third-parties in transactions.
(a) Entities other than covered parties may facilitate, broker, or assist covered parties to transfer ERUs recorded in accounts in the registry, but they may not hold ERUs.
(b) Only covered parties, ecology, and voluntary participants may hold ERUs.”

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The Governor of California is  expected to sign a Bill adopted by the California Legislature that further expands what has been called the Country’s most aggressive climate change legislation aimed at reducing Greenhouse Gases (GHGs). The new Act calls for a significant reduction in GHGs by 2030. The Act is also tied to another Bill just passed by the Legislature, Assembly Bill 197 of 2015-2016, that modifies the authority of the State Air Resources Board.

The legislation is administered by a State Air Resources Board. The companion Bill 197 would implement a legislative oversight committee to ensure the Air Resources Board acts in a manner that, among other things, ensures that plans ” …identify for each emissions reduction measure, including each alternative compliance mechanism, market-based compliance mechanism, and potential monetary and nonmonetary incentive the following information:

(a) The range of projected greenhouse gas emissions reductions that result from the measure.

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A newly released study has predicted that unchecked climate change could result in a significant increase in sea level rise. As reported in the media, a new study has concluded that previous estimates of sea level rise underestimated the potential contribution from the Antarctic ice sheet, should climate change continue without action to limit its impacts. The new predictions view the increase in sea level rise being increased by a factor of two.

Simply stated:

“Antarctica has the potential to contribute more than a metre of sea-level rise by 2100 and more than 15 metres by 2500, if emissions continue unabated.”

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On December 3, 2015, a bill was introduced in the U.S. House of Representatives proposing to relate the ability of the EPA to regulate carbon dioxide emissions, from fossil fuel-fired electric generating plants, to certification of specific actions by other countries to reduce carbon dioxide emissions. H.R. 4169 links new regulations of CO2 emissions from those power plants to implementation of regulations by other countries that would reduce worldwide CO2 emissions (not including US. emissions) by eighty (80%) percent.

Not only does the bill prevent the EPA from trying to unilaterally take action to reduce CO2 emissions, the bill appears to effectively preempt U.S. participation in any international agreement on reduction of CO2, unless it meets the standards set by Congress.  One question is whether the bill would violate Article II, section 2 of the United States Constitution which provides the President “…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”.  If the President reaches an international agreement on CO2 emissions that has a different standard for reduction, does Congress have the authority to block implementation of such an agreement through an Act such as H.R. 4169?

The full text of the bill reads as follows:

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