Court Battles

Court rejects challenge to EPA pollution rules

Last week, the EPA proposed new options for treating and reducing the chemicals contained in the runoff from power plants, which make up more than half of all the pollutants dumped into U.S. waterways, the agency says.

“Reducing the pollution of our waters through effective but flexible controls such as we are proposing today is a win-win for our public health and our economic vitality. We look forward to hearing from all stakeholders on the best way forward,” said Bob Perciasepe, the agency’s acting administrator.

The Utility Water Act Group, a collection of energy companies and trade associations, claimed that the regulations stemming from the agreement could prove costly and were issued too quickly.

Judge Karen LeCraft Henderson, of the U.S. District Appeals Court, on Tuesday said the energy industry did not prove that the previous court decision hurt the companies involved.

“The consent decree does not require EPA to promulgate a new, stricter rule,” wrote Henderson, who was appointed to the court by President George H.W. Bush in 1990. “Instead, it merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule — the content of which is not in any way dictated by the consent decree — using a specific timeline.”

{mosads}The consent order says rules must be finalized within 13 months of issuing a proposal. The new proposals announced last week will receive a 60-day comment period and must be finalized by May 22, 2014.

The Sierra Club and the Defenders of Wildlife threatened to sue the EPA in 2009 for not updating its rules about emissions from steam- and coal-powered electricity plants.

The EPA agreed, admitting that the regulations had not been revised since 1982 and “not kept pace with the changes that have occurred in the electric power industry over the last three decades.”

In 2010, the agency reached an agreement with the two environmental watchdogs and agreed to review and ask the public for comment on issuing updated rules for the power plants.

Henderson said that, in order for the court to rule in favor of the Utility Water Act Group, they would have to prove more damages “than the possibility of potentially adverse regulation.”

The industry also argues that the consent order imposes “too strict” of a timeline for the EPA to decide whether to take action and when it should. The court disagreed with that argument as well.

“[Utility Water Act Group] UWAG cites no authority holding a thirteen-month notice-and-comment period is too short; UWAG simply asserts that it is too short compared to EPA’s past rulemakings,” Henderson wrote. “That one rulemaking moves faster than another, however, does not mean that it results in procedural injury to UWAG members.”

The Administrative Procedure Act, which governs the rule-making process, says regulators can set comment periods at anywhere from 30 to 90 days.

The regulatory process often takes longer than 13 months because of the red tape and barriers involved with the executive review process.

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