Another Shutdown Deadline Looms; WOTUS Litigation Slated To Resume
Congress is scrambling as lawmakers face a Nov. 17 deadline to fund EPA and other agencies or shut down the government. Litigation over the Biden administration’s revised definition of “waters of the United States” (WOTUS) is set to resume as state critics are slated to file amended complaints in light of EPA’s rule aligning the definition with the Supreme Court’s Sackett ruling.
Shutdown Countdown II
EPA and other agencies could shut down as soon as Nov. 17 when a current stop-gap spending bill expires, six weeks after narrowly avoiding such an outcome. While Senate Majority Leader Chuck Schumer (D-NY) has begun the process to consider a short-term continuing resolution (CR) before funding expires, it is not clear where House Republicans stand and how they plan to proceed on fiscal year 2024 spending.
House GOP leaders are continuing their push to advance individual appropriations measures even as they weigh options for a CR in order to prevent a shutdown. But the GOP caucus remains divided over the measures, with leaders last week being forced to pull spending bills for the transportation and housing departments, as well as for financial services, from the floor due to opposition from their own members. House Speaker Mike Johnson (R-LA) has said he would like a CR to run through January or April “to ensure the Senate cannot jam the House with a Christmas omnibus.” But Johnson and other Republicans are currently considering a “laddered CR,” that would set different funding deadlines for different agencies, an approach key senators strongly oppose.
States are set to file amended complaints in litigation over the Biden administration’s WOTUS rule in light of EPA’s amended rule to comport with the Supreme Court’s Sackett ruling. Texas and Idaho are set to file in the suit State of Texas, et al., v. EPA, et al. in the U.S. District Court for the Southern District of Texas on Nov. 13, and 24 Republican states, led by West Virginia Attorney General Patrick Morrisey, are set to file their amended complaints the same date in West Virginia, et al., v. EPA, et al. in the U.S. District Court for the District of North Dakota. The state of Kentucky is also set to file a brief in the suit Kentucky v. EPA, et al., in the U.S. Court of Appeals for the 6th Circuit on Nov. 17.
The National Agricultural Law Center on Nov. 15 is set to hold its third and final webinar on WOTUS, taking a look at the ways different states have acted to regulate wetlands and interstate waters in light of the Supreme Court’s narrowing of federal Clean Water Act (CWA) jurisdiction in Sackett and EPA’s subsequent conforming WOTUS rule.
Comments are due Nov. 13 on EPA’s proposed rule that allows “major” sources of air toxics to limit their emission potential to levels below regulatory thresholds and become “area” sources subject to weaker regulation–though the proposal seeks to impose permit “safeguards” to limit any emissions increases.
Comments are due Nov. 13 on EPA’s proposed framework for how to regulate newly listed hazardous air pollutants (HAPs), which will potentially expand the number of air toxics regulations to which facilities are subjected, along with their permitting burdens, but falls short of environmentalists’ demands for more-sweeping regulation as a direct result of any new listing.
Air Reporting & Monitoring
Comments are due Nov. 17 on EPA’s proposed rule strengthening air emissions reporting requirements.
Tomás Carbonell, EPA air office chief for stationary sources, will provide Nov. 14 keynote remarks on “Next Generation Emissions Monitoring in Today’s Regulations” at an Air & Waste Management Association’s conference.
The House Energy and Commerce Committee holds a Nov. 14 hearing on EPA’s proposed GHG rule for coal and gas-fired power plants. House Republicans will argue the rule will “result in lasting damage to energy reliability and accessibility.” State officials will testify.
The House science committee’s oversight panel on Nov. 14 will look at the Biden administration’s proposal requiring federal contractors to disclose GHGs and climate risks. At the hearing, featuring Council on Environmental Quality’s Andrew Mayock, Republicans will argue the rule inappropriately delegates authority to the Science Based Targets Initiative (SBTi).
EPA has scheduled a Nov. 14 webinar on its proposed TSCA rule to ban the solvent trichloroethylene (TCE). The agency is seeking to phase out nearly all use of TCE within 10 years of finalizing the rule, and would impose strict workplace protections for applications that continue beyond the first year — a much stricter approach than its prior solvent rules, which would allow at least some uses of the chemicals they target to continue indefinitely.
The Small Business Administration’s Office of Advocacy will hold a Nov. 17 roundtable on EPA’s TCE ban as well as its proposed rewrite of the “framework” for risk evaluations of existing chemicals.
The Ad-Hoc Industry Natural Resource Management Group is holding its annual Natural Resources Symposium on Nov. 15 at the George Washington University Law School. Discussions will include updates since last years symposium, as well as emerging ESG reporting requirements, climate change, PFAS and other emerging contaminants, the role of the judiciary, and public/private partnerships and collaborations.