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January, 2009 U.S. Court of Appeals, District of Columbia Circuit North Carolina v. Environmental Protection Agency, __ F.3d __, 2008 WL 5335481 (D.C. Cir. 2008). Following a July 11, 2008 decision in which it vacated the EPA’s Clean Air Interstate Act (CAIR), the District of Columbia Court of Appeals reversed course on December 23. Citing “major flaws” in the Regulation, the July decision vacated CAIR and remanded the Regulation back to the EPA for revisions. However, the federal court decided that CAIR should stay in effect as written until the EPA is able to make such revisions. Though no timetable has been set for EPA action, the court made clear that the Agency should give the matter its immediate attention. “Though we do not impose a particular schedule by which EPA must alter CAIR, we remind EPA that we do not intend to grant an indefinite stay. Our opinion revealed CAIR’s fundamental flaws, which EPA must still remedy.” This development means that twenty-eight eastern states and the District of Columbia must implement the rule on January 1, 2009 with the knowledge that the program will undoubtedly receive a major makeover in the near future. CAIR is a program aimed at cutting sulfur dioxide and nitrogen oxide emissions from power plants by implementing an emissions cap-and-trade system. Ninth Circuit (Oregon) Pacific Northwest Generating Coop., et al. v. Dept. of Energy, et al., __ F.3d __, 2008 WL 5235837 (9th Cir. 2008). The Bonneville Power Administration (BPA), a regional power authority in the Pacific Northwest has a right to sell its power directly to industrial customers, the Ninth Circuit Court of Appeals said in a decision rendered December 17, 2008. The challenge to BPA’s interpretation of the Northwest Power Act (NWPA) came from local utilities and electric cooperatives who believed BPA was required to sell its power through them. One of BPA’s initial functions was to provide low-cost energy to the area’s aluminum industry. BPA looked to sell its surplus power to other “direct service industrial” customers (DSIs). The federal court held that the sale of hydroelectric power directly to other industrial customers was within the authority of BPA and that it did not have to purchase the power through local utilities and electric cooperatives. Office of Surface Mining – Final Rule on Stream Buffer Zones On December 12, 2008, the Office of Surface Mining (OSM) published a final rule to clarify the scope and application of its stream buffer zone regulations. The rule is designed, in part, to foster regulatory stability by clarifying OSM’s policy concerning mining related activities within or nearby streams. Among other things, the rule creates new regulatory requirements applicable to excess spoil placement created by the mining operation, including the provision that mining operations must return as much spoil as possible to the excavation created by the mine. The rule also requires that operators avoid disturbing land within 100 feet of a perennial or intermittent stream unless the operator can demonstrate that it is not reasonably possible to avoid disturbance or that avoidance is not necessary to meet environmental requirements. The final rule will become effective on January 12, 2009. Lawsuit Challenges Approval of New Stream Buffer Zone Rule On December 22, 2008, a number of environmental groups filed a Complaint for Declaratory and Injunctive Relief in the U.S. District Court for the District of Columbia Circuit seeking review of the final stream buffer zone (SBZ) rule which was promulgated by the U.S. Department of the Interior’s Office of Surface Mining (OSM) and approved by the Environmental Protection Agency (EPA). The lawsuit names both the Department of the Interior (DOI) and the EPA as defendants. The Complaint contains two counts against each agency. Count One of the Complaint alleges that OSM violated the National Environmental Policy Act. Count Two states that OSM violated the Administrative Procedure Act (APA) and the Surface Mining Control and Reclamation Act. Counts Three and Four assert claims against the EPA for allegedly violating the APA and the Clean Water Act, respectively.
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