Commentary on a case before the Supreme Court that could affect regulatory interpretations by federal agencies was the top Energy and Climate Report story for the week ending Oct. 10. A story on environmental justice took the number two spot, followed by a report on the impact EPA rules could have on electrical generating capacity. Rounding out the top five list was a story on EPA's new acting deputy administrator and comments by Senate Majority Leader Mitch McConnell (R-Ky.) concerning climate change and EPA rulemaking.
1. Administrative Law Case Could Affect Agency Interpretations, Attorneys Say
As covered in this story, a case scheduled to be heard by the U.S. Supreme Court in December could have a significant effect on the ability of the EPA and other federal agencies to revise their regulatory interpretations, according to a pair of attorneys.
The issue in the case, Perez v. Mortgage Bankers Association, is whether a federal agency has the authority under the Administrative Procedure Act to revise interpretive rules without initiating public notice and comment procedures.
While the case involves a revision by the U.S. Labor Department, the case could be the “most important environmental law case” that the Supreme Court will consider this term, according to Pratik A. Shah, co-head of the Supreme Court and appellate practice at Akin Gump.
2. Justice Council Members Say Advising EPA About Concerns May Be Exercise in Futility
Members of EPA's National Environmental Justice Advisory Council—whose remarks are covered in this story—are questioning whether advising the agency on environmental justice concerns is “an exercise in futility."
Several members voiced frustration at the recent NEJAC meeting with the EPA's repeated questions and lack of action, saying the EPA didn't value their time or use their input in policies. These frustrations spanned the lack of action on Title VI civil rights issues to mountaintop removal mining and glacial movement in incorporating environmental justice into permitting, they said.
A number of EPA officials responded at the meeting to these frustrations by highlighting in-the-works rulemakings that will improve the environment and public health for environmental justice communities. The agency acknowledged that progress can be slow and told environmental justice advocates that their efforts have laid the groundwork for major programs that improved the lives of those in vulnerable communities.
3. EPA Rules to Force Retirement of 73 GW of Generating Capacity, Researchers Find
Nearly 73 gigawatts of electricity generating capacity have been or will be retired due to a suite of air regulations issued by the EPA, according to a report by the Institute for Energy Research, which is detailed in this story.
For the report, the institute assessed the effects of EPA regulations that target air pollution from power plants, including the agency's Mercury and Air Toxics Standards, Cross-State Air Pollution Rule and proposed regulations targeting carbon dioxide emissions from existing power plants.
The report projects that power plants in 37 different states either have or will shut down due to environmental regulations. Of the capacity expected to be retired, more than 94 percent will come from coal-fired power plants, according to the report.
4. Retired Deputy Administrator for Region 4 Named as Acting EPA Deputy Administrator
As covered in this story, Stanley Meiburg, who briefly retired from the EPA, will return and serve as acting deputy administrator effective immediately.
Meiburg, who had retired in May following a 37-year career, most recently served as the deputy regional administrator in EPA's Region 4, based in Atlanta.
Previously, Meiburg was the deputy regional administrator in EPA's Region 6 in Dallas. Meiburg has held other positions since joining the EPA in 1977. These include being director of Region 6's Air, Pesticides and Toxics Division and director of planning and management staff in the agency's Office of Air Quality Planning and Standards in Durham, N.C.
5. Climate Change Not Yes or No Question, Says McConnell, Who Vows Vote on Rules
As covered in this story, Senate Minority Leader Mitch McConnell (R-Ky.), locked in a close re-election battle, said the existence of climate change is “not a yes or no question” and vowed to hold votes to roll back EPA regulations if he becomes majority leader next year.
EPA regulations on carbon dioxide emissions from new and existing power plants created “an Obama-induced coal depression” throughout his state, and those regulations would make almost no difference on climate change internationally, McConnell said.
“One country doing this is going to have zero impact—about as much effect as dropping a pebble in the ocean,” McConnell said. “Other countries are not willing to sacrifice their economies today to pursue a crusade that they don't think makes sense for them.”
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