EPA Opens an Absurd Front in the War on Coal

EPA Administrator Gina McCarthy once declared that she “didn’t go to Washington to sit around and wait for Congressional action. Never done that before, and don’t plan to in the future.” May 1, 2010, quoted in CNS News, March 4, 2013. EPA’s recently proposed rule on ‘carbon pollution’ from new coal-fired power plants is a perfect example of this mind-set and her seemingly fervent belief that “greenhouse gas pollution, through its contribution to global climate change, presents a significant threat to Americans’ health and to the environment upon which our economy and security depends.” Testimony U.S. House of Representatives, June 29, 2012.

On September 20, 2013, EPA issued proposed uniform national limits on the amount of ‘carbon pollution,’ (i.e., carbon dioxide) that future power plants will be allowed to emit. The proposed rule comes at a time when there has been a documented pause in ‘global warming’ over the last 16 years and a growing consensus that the climate models predicting dire results from carbon emissions grossly overstated the risks. Nevertheless, Ms. McCarthy’s EPA is opening new fronts in the war on coal. Continue reading “EPA Opens an Absurd Front in the War on Coal”

An Inconvenient Irony

Hydraulic fracturing, or fracking, remains the target of many environmental groups and some governments who seek to prohibit or significantly curtail the practice. Fracking, however, has provided an abundance of cheap natural gas, which has played a major role in the dramatic decrease in the amount of carbon dioxide (CO2) emitted in the United States. The decrease in CO2 and the role fracking has played in it has created an interesting, and perhaps inconvenient, irony.

The combustion of fossil fuels (such as coal, oil, and natural gas) in the energy, transportation, and industrial sectors creates the vast majority of greenhouse gases (GHG). Coal combustion creates much more CO2 than the combustion of natural gas. CO2 is the most abundant of GHG and remains in the atmosphere much longer than other GHG, such as methane. Although methane and other GHG have a higher global warming potential, the large amount of CO2 emitted into the atmosphere has been a major focus of the climate change (formerly known as ‘global warming’) debate. Recent Environmental Protection Agency (EPA) regulations and the Kyoto Protocol are examples of national and international efforts spurred by environmental groups seeking massive decreases in CO2 emissions. Continue reading “An Inconvenient Irony”

The Sackett Decision —A Major Victory for Property Owners

The Environmental Protection Agency (EPA) has acknowledged the precedential effect of the landmark Sackett case and wisely decided to expand the decision’s reach beyond the Clean Water Act to a designated group of actions similar to the one at issue in that case. For many, though, the expansion does not go far enough.

In Sackett v. EPA, 132 S.Ct. 1367 (2012), the United States Supreme Court provided a major victory to landowners seeking pre-enforcement review of compliance orders issued under the Clean Water Act. The Supreme Court decision in Sackett changed the entire review framework.

The Sacketts placed dirt and rock on about a half-acre of their property, which the EPA claimed contained wetlands. EPA sent a compliance order to the Sacketts, requiring the Sacketts to, among other things, immediately undertake activities to restore the lot in accordance with an EPA-created Restoration Work Plan and to provide EPA access to the lot and to all records and documentation related to the conditions at the lot. EPA warned the Sacketts that a failure to comply could result in penalties of $37,500 per day, plus a like amount for a failure to comply with the compliance order.

Prior to this decision, the Sacketts would not have an opportunity to contest this order in court unless and until EPA sought to enforce it judicially or sought penalties for the underlying violation. The Supreme Court made clear that judicial review was available under the Administrative Procedure Act (APA) because the compliance order was a “final agency action for which there is no other adequate remedy in a court.” 5 USCA §704. Based on the Supreme Court’s review of the compliance order and APA, the compliance order was deemed a ‘final agency action for which there is no other adequate remedy in a court.’ As a result, the Sacketts were allowed to seek judicial review of the compliance order under the APA.

The EPA has now extended the logic of the Sackett ruling to other ‘final agency actions’ under different statutes. Bowing to reality and saving litigants countless legal battles, EPA issued a memorandum, dated March 21, 2013, in which it advised its regional offices that ‘administrative enforcement orders’ contain language notifying the recipient that judicial review of the order is available. Specifically included in the scope of the new policy are:

  • FIFRA, Section 13: Stop Sale, Use, or Removal Orders
  • CAA, Sections 113(a)(5) and 167: Stop Work Orders
  • CAA, Section 113(a): Administrative Compliance Orders
  • SDWA, Section 1414: Administrative Compliance Orders
  • SDWA, Section 1431: Emergency Compliance Orders
  • EPCRA, Section 325(a): Administrative Compliance Orders
  • RCRA, Sections 3008(a) and 9006(a): Administrative Compliance Orders
  • RCRA, Section 3008(h): Interim Status Corrective Action Orders
  • RCRA, Section 9003(h): Corrective Action Orders

However, there are several very important regulatory decisions that are not included. First, jurisdictional determinations issued by the EPA or the Army Corps of Engineers are not included. In Belle Co., LLC v. U.S. Army Corps of Engineers, a Louisiana district court ruled that Sackett does not extend to such determinations, but the decision is under appeal to the U.S. Court of Appeals for the 5th Circuit. Second, notices of violation (NOVs) under the Clean Air Act were excluded probably because an NOV does not order or compel any type of action. Third, imminent and substantial endangerment orders issued under RCRA Section 7003 are not included. Finally, orders under CERCLA are specifically excluded from judicial review. 42 USCA 9613(h).

Despite the exceptions, acknowledging judicial review of agency decisions is a step in the right direction for those who receive such an order. Ironically, though, it may also mean that any such order will be able to withstand judicial review. As the EPA will know that it may be challenged, it is most likely to ensure that the facts and evidence are available in the record to support the order.