Jan. 17 --Federal appeals court judges indicated Jan. 17 that the
Environmental Protection Agency may have overstepped its authority when it
required regional offices to apply different air permitting requirements in
different states (Nat'l Envtl. Dev. Ass'n's Clean Air Project v. EPA,
D.C. Cir., No. 13-1035, oral arguments 1/17/14).
panel of the U.S. Court of Appeals for the District of Columbia Circuit seemed
to agree during oral arguments with a trade group's argument that EPA
regulations require the agency to apply its policies uniformly across its
However, the judges questioned whether the petitioner,
the National Environmental Development Association's Clean Air Project--which
represents manufacturers including BP America, Georgia-Pacific LLC and Exxon
Mobil Corp.--has brought a case that is ripe for review by the court. The EPA
has argued that industry hasn't been harmed by the agency's action.
Gregory Garre, an attorney with
Latham & Watkins LLP representing the trade group, told the court that
applying standards differently across the country creates a competitive
advantage for companies in the Sixth Circuit, where permitting requirements now
are less difficult.
The judges will consider the arguments before
issuing a decision in the case in the coming months.
At issue in the
case is a Dec. 21, 2012, memorandum
to the agency's regional air division directors, which said the EPA will
continue in most states its policy of considering whether emissions sources
are functionally interrelated when determining whether they are subject to
However, the memo said the EPA will not
continue the policy in Kentucky, Michigan, Ohio, and Tennessee, which are in
the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit, in
response to a court ruling over the aggregation of emissions from a natural
gas plant and wells for permitting purposes .
The NEDA's Clean Air
Project has said Section 301(a)(2) of the Clean Air Act and EPA regulations at
40 C.F.R. pt. 56.3 require the agency to ensure uniformity and consistency
across regions when implementing the law.
Judge Harry Edwards seemed to
agree with that interpretation. “That's what the regulations say,” he said
during oral arguments.
Smaczniak, a Justice Department attorney representing the EPA, told the court
the memo simply said the agency will continue to apply its long-standing
permitting policy, except in the Sixth Circuit.
However, Judge David
Tatel challenged Smaczniak on that statement, saying the long-standing policy
doesn't carve out certain states; the policy historically had been a national
Smaczniak also said the memo, which was sent shortly after the Sixth
Circuit's decision, was meant to inform the regional offices and the regulated
community of the legal development. She argued there can be no legal
consequences from such an informative memo.
Edwards said the memo was
not merely an example of the EPA headquarters conferring with its regional
offices. The memo announced to the world, including the regulated industry,
that the EPA would have two separate standards going forward, he said.
The Sixth Circuit on Aug. 7, 2012,
vacated the EPA's determination that Summit Petroleum Corp.'s natural gas
plant and production wells in Michigan are adjacent to one another and
constitute a single major source (Summit Petroleum Corp. v. EPA, 690
F.3d 733, 75 ERC 1129, 2012 BL 198736 (6th Cir. 2012)).
The EPA had
issued a determination that production wells for the Summit plant are
adjacent, in part because they are functionally interrelated, even though the
wells are not next to the natural gas plant. Once sources are considered to be
adjacent, their operations could be considered to be one major source and
therefore subject to permitting requirements under Title V of the Clean Air
The Sixth Circuit's opinion said EPA's determination is contrary to
the plain meaning of the word “adjacent.” Summit's plant and wells sat on
various parcels in a 43-square-mile area. The wells were located between 500
feet and eight miles from the plant, and Summit did not own the property
between the wells and the plant.
Tatel said the EPA could initiate a
notice-and-comment rulemaking to allow sources that are functionally
interrelated to be considered adjacent, which would both address the Sixth
Circuit's decision and have the standard apply nationally.
To contact the reporter on this story: Jessica Coomes in Washington at firstname.lastname@example.org.
contact the editor responsible for this story: Larry Pearl at email@example.com
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