Article: June 2017: Energy Litigation Update

by Quinn Emanuel Urquhart & Sullivan, LLP
Contact

Quinn Emanuel Urquhart & Sullivan, LLP

New Administration Leads to Pause of Major Energy-Related Litigation. In March, President Trump signed an executive order directing the Environmental Protection Agency (“EPA”) to “suspend, rescind, or revise” several Obama-era environmental regulations, including the Clean Power Plan and other greenhouse gas regulations for the power sector. Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar. 28, 2017). The order also directed the review of the government’s use of the social cost of carbon, lifted the moratorium on federal land coal leasing activities, and rescinded six Obama-era climate-related presidential actions (including executive orders, memoranda, and reports). Id.

This change in climate policy has slowed litigation in four significant areas:. In April alone, the D.C. Circuit delayed challenges to; (1) smog standards; (2) emissions exemptions related to startup, shutdown, and malfunction events at power plants and other facilities; (3) regulations on mercury and other emissions from coal power plants; and (4) the Clean Power Plan. While existing litigation stalls as the Trump administration reconsiders Obama-era regulations, states may take a greater role in climate-related policies and litigation.

First, in late 2015, the EPA revised the national ambient air quality standards (“NAAQS”) for ozone, reducing the limits on ozone—an ingredient in smog—from 75 to 70 parts per billion. See Fed. Reg. 65,291 (Oct. 26, 2015). Industry groups petitioned for review of the regulation. See Murray Energy Corp. v. EPA, No. 15-1385 (D.C. Cir.).

On April 7, 2017, “[i]n light of the recent change in administration,” the EPA asked the court to delay oral arguments, which were scheduled for April 19, so it could “fully review the 2015 ozone NAAQS.” The EPA noted that “the prior positions taken by the Agency with respect to the 2015 Rule may not necessarily reflect its ultimate conclusions after that review is complete.” The D.C. Circuit granted the EPA’s request on April 11, allowing the Trump administration more time to review the regulations, and directing the government to file status reports on its review process every 90 days.

Second, a few weeks later, the D.C. Circuit granted another request by the EPA to postpone oral arguments—this time, in Walter Coke Inc. v. EPA, No. 15-1166 (D.C. Cir.), which challenged an EPA regulation requiring 36 states to reconsider how their state implementation plans treat excess emissions during periods of startup, shutdown, or malfunction (“SSM”) at power plants and other facilities. See 80 Fed. Reg. 33,840 (June 12, 2015).

The EPA requested “continuance of the oral argument to give the appropriate officials adequate time to fully review the SSM Action” on April 18, 2017, again “[i]n light of the recent change in administration.” The D.C. Circuit granted the EPA’s request on April 24, and—just as above—directed the government to file status reports on its review process every 90 days.

Third, three days later, on April 27, the D.C. Circuit delayed oral arguments over Obama-era regulations on mercury and other emissions from coal power plants. In 2016 Murray Energy Corporation petitioned for review of the EPA’s findings regarding the cost of its Mercury and Air Toxics Standards (“MATS”). See Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir.).

The EPA had prepared these findings in response to the Supreme Court’s decision in Michigan v. EPA, 135 S. Ct. 2699 (2015), concluding that costs did not change their initial determination. See 81 Fed. Reg. 24,420 (Apr. 25, 2016).

On April 18, 2017, the EPA asked to delay oral arguments scheduled for May 18, and on April 27, the D.C. Circuit granted the request, again directing the EPA to file status reports on its review of the supplemental findings every 90 days.

Finally, the day after it delayed oral arguments over MATS, the D.C. Circuit granted the EPA’s request for a pause in litigation on the Clean Power Plan. In August 2015, the EPA finalized a new set of standards, now known as the Clean Power Plan, aimed at cutting emissions from existing power plants 32% by 2030. Over two dozen states (and other affected parties, including several electric utilities) challenged the rule in West Virginia v. EPA, No. 15-1363 (D.C. Cir.), while eighteen states, including California and New York, intervened in support of the EPA. In January 2016, the Supreme Court, by a 5-4 vote, granted a stay, which immediately halted implementation of the Plan. See West Virginia v. EPA, 136 S. Ct. 1000 (2016).

On the same day President Trump issued his executive order, the EPA filed a motion with the D.C. Circuit to postpone proceedings in that court to allow for the review to take place, arguing that it “should be afforded the opportunity to fully review the Clean Power Plan and respond to the president’s direction in a manner that is consistent with the terms of the executive order, the Clean Air Act, and the agency’s inherent authority to reconsider past decisions.” The state intervenors asked the court to deny the EPA’s request, arguing that “nothing that EPA has proposed to do obviates the need for this Court’s review,” and in fact, “a decision from this Court will resolve critical live disputes over the scope of the Clean Air Act that will not only determine the enforcement of the Clean Power Plan, but also affect any reconsideration or revision of the Rule that EPA may undertake.”

On April 28, the D.C. Circuit granted the EPA’s motion, holding the case in abeyance for 60 days and ordering the parties to the litigation to file supplemental briefs “addressing whether the consolidated cases should be remanded to the agency rather than held in abeyance.”

* * *

With existing litigation stalled as the Trump administration reconsiders Obama-era regulations, states may become increasingly active in climate-related policy and litigation, with New York and California at the forefront. For example, after the D.C. Circuit paused the Clean Power Plan challenge, New York’s Attorney General said in a statement that the “temporary pause in the litigation does not relieve EPA of its legal obligation to limit carbon pollution from its largest source: fossil-fueled power plants.” And he vowed to “continue to fight in court to ensure EPA fulfills its legal responsibility to New Yorkers’ public health and environment.” California’s Attorney General likewise is preparing to oppose President Trump’s climate-change policies to ensure, as he put it, that Californians can continue to “drink clean water and breathe clean air.” It remains to be seen whether such litigation will have any effect on the new administration’s policies.

New Administration Leads to Pause of Major Energy-Related Litigation. In March, President Trump signed an executive order directing the Environmental Protection Agency (“EPA”) to “suspend, rescind, or revise” several Obama-era environmental regulations, including the Clean Power Plan and other greenhouse gas regulations for the power sector. Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar. 28, 2017). The order also directed the review of the government’s use of the social cost of carbon, lifted the moratorium on federal land coal leasing activities, and rescinded six Obama-era climate-related presidential actions (including executive orders, memoranda, and reports). Id.This change in climate policy has slowed litigation in four significant areas:. In April alone, the D.C. Circuit delayed challenges to; (1) smog standards; (2) emissions exemptions related to startup, shutdown, and malfunction events at power plants and other facilities; (3) regulations on mercury and other emissions from coal power plants; and (4) the Clean Power Plan. While existing litigation stalls as the Trump administration reconsiders Obama-era regulations, states may take a greater role in climate-related policies and litigation.First, in late 2015, the EPA revised the national ambient air quality standards (“NAAQS”) for ozone, reducing the limits on ozone—an ingredient in smog—from 75 to 70 parts per billion. See Fed. Reg. 65,291 (Oct. 26, 2015). Industry groups petitioned for review of the regulation. See Murray Energy Corp. v. EPA, No. 15-1385 (D.C. Cir.).On April 7, 2017, “[i]n light of the recent change in administration,” the EPA asked the court to delay oral arguments, which were scheduled for April 19, so it could “fully review the 2015 ozone NAAQS.” The EPA noted that “the prior positions taken by the Agency with respect to the 2015 Rule may not necessarily reflect its ultimate conclusions after that review is complete.” The D.C. Circuit granted the EPA’s request on April 11, allowing the Trump administration more time to review the regulations, and directing the government to file status reports on its review process every 90 days.Second, a few weeks later, the D.C. Circuit granted another request by the EPA to postpone oral arguments—this time, in Walter Coke Inc. v. EPA, No. 15-1166 (D.C. Cir.), which challenged an EPA regulation requiring 36 states to reconsider how their state implementation plans treat excess emissions during periods of startup, shutdown, or malfunction (“SSM”) at power plants and other facilities. See 80 Fed. Reg. 33,840 (June 12, 2015).The EPA requested “continuance of the oral argument to give the appropriate officials adequate time to fully review the SSM Action” on April 18, 2017, again “[i]n light of the recent change in administration.” The D.C. Circuit granted the EPA’s request on April 24, and—just as above—directed the government to file status reports on its review process every 90 days.Third, three days later, on April 27, the D.C. Circuit delayed oral arguments over Obama-era regulations on mercury and other emissions from coal power plants. In 2016 Murray Energy Corporation petitioned for review of the EPA’s findings regarding the cost of its Mercury and Air Toxics Standards (“MATS”). See Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir.).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Quinn Emanuel Urquhart & Sullivan, LLP | Attorney Advertising

Written by:

Quinn Emanuel Urquhart & Sullivan, LLP
Contact
more
less

Quinn Emanuel Urquhart & Sullivan, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.