Energy and Environment Monitorwww.eem.jacksonkelly.com

D.C. Circuit Reverses Opinion, Remands CAIR without Vacating the Rule

December 23, 2008, the U.S. Court of Appeals for the D.C. Circuit remanded the Clean Air Act Interstate Rule (CAIR) to EPA without vacatur of the underlying rule. July 11, 2008, the Court issued an opinion finding “more than several fatal flaws in the rule.” North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (per curiam).  Since  EPA adopted CAIR as an integral action, the D.C. Circuit  vacated the rule in its entirety and remanded to EPA to promulgate a rule consistent with the Court’s opinion  (Id. at 29-30.) (see July 18, 2008 article for more detail regarding the decision)

 

The CAIR rule was designed to reduce emissions from power plants of SO2 by 73% and NOx by 61% and was the primary tool for eastern states to achieve compliance with the new federal air quality standards and other major requirements.  The impact of the Court’s ruling was alleged to be a major disruption of the primary new air quality control program resulting in delayed health and air quality benefits, $10 - $15 billion of planned pollution investment through 2010 at risk, States would have to redo statewide air quality and permitting plans and develop new regulations on both new and old factories and affordable and reliable clean coal energy would be jeopardized. In the panic ensuing following the Courts July 11, 2008 vacatur of CAIR, legislative fixes to the vacatur were proposed (see August 18, 2008 JK Environmental Blog article).

 

            On September 24, 2008, EPA filed a petition for rehearing or, in the alternative, for a remand of the case without vacatur. On October 21, 2008, the Court order the parties to file a response to EPA’s petition addressing “ (1) whether any party is seeking vacatur of the Clean Air Interstate Rule, and (2) whether the court should stay its mandate until Respondent [EPA] promulgates a revised rule.”  EPA was given leave to “reply to the question whether a stay of the court’s mandate in lieu of immediate vacatur would suffice.”

 

After consideration of the parties’ respective positions, the Court granted EPA’s petition to the extent that the Court remanded the case without vacatur of the CAIR rule for EPA to conduct further proceedings consistent with the Court’s July 11, 2008 opinion. The Court found:

 

 “Notwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR. Accordingly, a remand without vacatur is appropriate in this case.”

 

Although some of the Petitioners requested that the Court impose a definitive deadline by which EPA must correct CAIR’s flaws, the Court determined to refrain from doing so. The Court emphasized that it was not granting an indefinite stay of the effectiveness of the Court’s decision and that EPA must remedy CAIR’s fundamental flaws. The Court noted the Petitioners right to bring a mandamus petition to the Court in the event that EPA fails to modify CAIR in a manner consistent with the July 11, 2008 opinion.

 

            For further information, contact the author Barbara D. Little at 304/ 340-1355 or email blittle@jacksonkelly.com.

 

This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.

OSM Completes Revisions to Stream Buffer Zone Rule

            OSM and EPA announced at the end of November 2008 that they have each approved OSM’s proposed changes to its “stream buffer zone” (“SBZ”) rule.  That rule, which has existed since 1983, was at the heart of the first programmatic challenge to excess spoil valley fills by the anti-mining lobby in West Virginia. 

 

            The SBZ rule, as adopted by OSM under SMCRA in 1983, prohibited surface mining activities within 100 feet of intermittent or perennial streams absent certain findings by the regulatory authority.  Among those findings were that the disturbance would not violate State water quality standards and that it would not “adversely affect the water quantity and quality or other environmental resources of the stream.”  30 C.F.R. 816.57.  The regulatory history of this section is sparse, but it appears that it was intended to create a “filter strip” parallel to streams in order to reduce sediment loading. 

 

            Nowhere in its regulatory history is there any indication that it was intended to apply to the excess spoil fills permitted by the Corps of Engineers under the Clean Water Act and which are needed in the central Appalachian mining industry.  Nor, until 1999, was there any effort by regulatory authorities or others to apply the rule to prohibit excess spoil fills.  That position was consistent with SMCRA, which expressly provides that SMCRA shall not be read to supersede, amend or repeal any part of the Clean Water Act’s permitting program.

 

            In 1999, however, a federal district court judge in West Virginia ruled that the SBZ rule applied to fills and that the regulatory agency could not make the requisite findings to authorize valley fills.  See Bragg v. Robertson, 72 F. Supp. 642 (S.D. W.Va. 1999), rev’d 248 F. 3d 275 (4th Cir. 2001).  That ruling effectively prohibited valley fills in all but ephemeral streams, and caused much short-term disruption in permitting and mine plans.  Initially, the Clinton administration defended the buffer zone claims advanced in the case by anti-mining activists.  However, after filing an appeal, the United States abruptly changed positions. 

 

            In its initial brief with the Fourth Circuit, the United States announced that the district court was largely right, and that the buffer zone rule prohibited most fills associated with surface mining.  Two things prevented that position from prevailing for long.  First, the Fourth Circuit reversed the district court.  Second was the change in administrations with the election of Bush in 2000.  The Bush administration never took the position that the SBZ prohibited fills.  However, the Fourth Circuit had reversed the district court in Bragg purely on jurisdictional grounds and never addressed the merits of the SBZ rule—thereby leaving open the way for later administrations to give the rule a restrictive application.

 

            In an effort to ensure that subsequent administrations did not re-interpret the SBZ to prohibit fills, as had been done in the last days of the Clinton administration, OSM elected to modify the rule using notice and comment rulemaking.  It also elected to conduct an Environmental Impact Statement on the proposed changes—a substantial undertaking that has been underway for over four years.  In August 2007, OSM published its proposed changes to the SBZ rule.  In November 2008, it completed the EIS.  EPA approved the rule in late November 2008, and the rule will be published soon in the federal register.  The revised rule contains several changes from the 1983 version.

 

            The revised rule makes clear that it does not prohibit fills, but the rule also will require regulatory authorities to find that mining operations have been designed to minimize excess spoil fills.  The rule will also extend to all “waters of the United States” and not limit its scope to just intermittent and perennial streams.  See 72 FR 48890 (Aug. 4, 2007) (proposed rule).  The fill minimization requirement will be new in some states with SMCRA programs, but not in West Virginia.  As a result of the Bragg litigation, the WVDEP adopted over five years ago a very detailed and rigorous fill minimization guidance document that has been used to satisfy both SMCRA and Corps officials.  The application of similar requirements in other states may, however, create confusion and frustration until OSM and state officials establish the criteria they will use for evaluating fill minimization.

 

            Mining opponents have unleashed a furious public relations campaign characterizing the rule as a “last-minute give away,” but OSM has been working on the rule and the associated EIS for almost five years.  A challenge to the rule is expected.

 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.