Boiler MACT Rules- On December 7th, EPA filed a motion with the Court requesting more time in order to re-propose the Boiler MACT rules and allow for public comment. In EPA's motion to the Court, EPA sets forth following timetable if its motion is granted to move impending January deadline is moved to April: it will publish revised proposals no later than June 1, 2011, and promulgate the final emission standards no later than April 13, 2002.
EPA states that more time is needed because significant issues with the proposed standards were raised in the public comment period and it needs more time to evaluate the technical merits of those comments. This from EPA's motion:
As evidenced by the number of comments, which include a substantial amount of
additional new data, the major source boilers, area source boilers, and CISWI rules will have far reaching effects. Estimates of the monetized value of the public health benefits for all three rules combined range from $18 billion and $44 billion. The economic impacts of implementation of these standards will also be significant and vary by rule. For example, the nation-wide capital cost for the proposed major source boilers rule was estimated to be $9.5 billion in the year 2013, with a total national annual cost of $2.9 billion in the year 2013. The major source and area source boilers rules are expected to apply at almost 200,000 boilers at over 90,000 facilities. On balance, given the broad impact these rules will have, EPA believes that the overall public interest is best served by allowing EPA to re-propose the rules so that the Agency will be able to issue emission standards that are based upon a thorough consideration of all available data and reduce potential litigation risks.
Many are very relieved that EPA has decided to take a second look at its proposed standards. The rules have wide ranging applicability and huge costs associated with them.
U.S. Supreme Court to Hear Climate Change Nuisance Case- The Supreme Court has agreed to hear an appeal of Second Circuit's decision in American Electric Power v. Connecticut. The lower court allowed several states, municipalities, and environmental groups to pursue a federal public nuisance action against a group of electric power producers for their emissions of greenhouse gases (GHGs).
The issue of GHG emission contributing to climate change is global issue with millions of sources contributing. The Court will examine how much a single subset of sources should be exposed to liability for their contribution to the issue.
The lower court found the Plaintiffs showed the requisite grounds to bring the suit. The Court found plaintiffs properly identified an injury, presented causation and redressability that should allow the suit to go forward. The Supreme Court granted the petition to hear the appeal to review this determination.
Also at issue is whether federal nuisance actions have been displaced by U.S. EPA's recent promulgation of climate change regulations (monitoring, Endangerment Finding, Light-Duty Vehicle Rule, Tailoring Rule). Federal nuisance actions are no longer available if it is determined that their is sufficient federal action to address the issue.
If the Court finds federal nuisance action has been displaced by EPA's regulations, this may prove to by a phyrric victory for some. Presumably, federal nuisance is only displaced so long as those regulation remain in place. What should happen if congressional action delays implementation or litigation successfully overturns the Endangerment Finding?
Regardless, this will be a fascinating case to follow next year.