trending Market Intelligence /marketintelligence/en/news-insights/trending/zis9wnlwqwduvspr0e7rxq2 content esgSubNav
In This List

DC Circuit upholds its role as arbiter of US EPA's national policies

Podcast

Next in Tech | Episode 49: Carbon reduction in cloud

Blog

Using ESG Analysis to Support a Sustainable Future

Research

US utility commissioners: Who they are and how they impact regulation

Blog

Q&A: Datacenters: Energy Hogs or Sustainability Helpers?


DC Circuit upholds its role as arbiter of US EPA's national policies

The U.S. Court of Appeals for the District of Columbia Circuit has ruled that "there is nothing" in the Clean Air Act requiring the U.S. Environmental Protection Agency to change its rules nationwide each time one of the other federal appeals courts issues a decision at odds with an EPA rule. Only its own rulings or those of the U.S. Supreme Court have national implications, the court found.

The complex legal matter goes back to an EPA directive issued in 2012 that declined to apply nationally a decision made by the U.S. Court of Appeals for the 6th Circuit in Summit Petroleum v. EPA.

That case dealt with the EPA's definition of major sources and whether multiple pollution-emitting activities are treated as a single stationary source if they are "adjacent." To make the determination in the circumstances at issue, the EPA looked at the functional interrelationships between Summit's natural-gas operations plant and wells located nearby and not just the physical distance separating them and determined they were one "source" for air permitting purposes. The 6th Circuit, however, vacated the ruling.

Concluding that the 6th Circuit's decision effectively overturned a national EPA policy, the agency in December 2012 issued a directive saying it would not apply the court's ruling outside that region. That directive was then challenged before the D.C. Circuit, which in May 2014 found that the directive was inconsistent with EPA's regulations. The D.C. Circuit did not, however, address if the directive violated the Clean Air Act.

The EPA responded to the D.C. Circuit ruling in August 2016 by changing the regulations cited by the court. Among the many changes was a provision clearly stating that only the decisions of the Supreme Court and the D.C. Circuit that arise from challenges to nationally applicable regulations or actions issued pursuant to the Clean Air Act will be applied nationally.

Industry groups — the National Environmental Development Association’s Clean Air Project, American Petroleum Institute and Air Permitting Forum — then asked the D.C. Circuit to review EPA's latest regulation changes on a variety of grounds, including that it violates the Clean Air Act by allowing the law to be implemented differently in different regions.

The D.C. Circuit disagreed. In an opinion penned by Judge Harry Edwards, the court found the amended regulations "reflect permissible and sensible solutions to issues emanating from intercircuit conflicts and agency nonacquiescence."

"Petitioners' ostensible parade of horribles — a potentially national thicket of inconsistent decisions — is overblown, to say the least," Edwards wrote. He noted that petitions to review purely local or regional EPA actions must be filed in the circuit court for the region at issue, but petitions regarding nationally applicable issues must be filed in the D.C. Circuit. Thus, Edwards wrote, Congress "obviously meant to curb inconsistencies" with respect to nationally applicable regulations "by channeling all such challenges to the D.C. Circuit."

As for addressing inconsistent rulings by other circuits, Edwards said an aggrieved party can seek rehearing of the latest court ruling, an en banc hearing before that court's entire bench or relief from the Supreme Court. If those efforts fail, the judge said the EPA could initiate a new rulemaking or take other action to resolve the inconsistency.

"The simple point here is that the statute clearly contemplates some splits in the regional circuits. There is nothing in the statute to indicate that EPA is bound to change its rules nationwide each time a regional circuit court issues a decision that is at odds with an EPA rule," Edwards concluded. "Were this the case, then the first court of appeals to address an issue would determine EPA's policy nationwide. And that would make no sense because only the D.C. Circuit has jurisdiction to hear and decide cases involving nationally applicable regulations or cases in which the action is based on a determination of nationwide scope or effect."

Joining Edwards in the ruling in National Environmental Development Association's Clean Air Project v. U.S. EPA (No. 16-1344), were Judges Merrick Garland and Laurence Silberman.