UPDATED, June 1, 2018: California Attorney General Xavier Becerra, D, along with a group of attorneys general from seven other states, filed a lawsuit Thursday in the U.S. District Court for the Northern District of California alleging the Environmental Protection Agency (EPA) has failed to enforce a 2016 landfill emissions rule outlined in the Clean Air Act.
"EPA has unequivocally stated that it does not intend to perform its obligations to implement the Emission Guidelines. Specifically, it has stated that it does not intend to respond to state plans that have already been submitted to comply with the Emission Guidelines, nor does it intend to impose a federal plan where the regulations require that it do so. However, EPA has taken no step to lawfully suspend, revise, or rescind the Emission Guidelines," the complaint says.
The states have requested the EPA be issued a mandatory injunction to enforce the emissions rule.
Dive Brief:
- California Attorney General Xavier Becerra and the California Air Resources Board have submitted a 60-day notice of intent to sue the Environmental Protection Agency (EPA) for not enforcing a 2016 landfill emissions rule. Attorneys general from Illinois, Maryland, New Mexico, Oregon, Rhode Island and Vermont — along with the Pennsylvania Department of Environmental Protection — co-signed the letter.
- Per the 2016 Emission Guidelines (EG) and Compliance Times for Municipal Solid Waste Landfills rule, states were required to submit compliance plans by May 30, 2017. The EPA was then expected to respond by Sep. 30, and impose a federal plan on any non-responsive states by Nov. 30. California submitted its plan in May, but has not received a "substantive response."
- According to a Jan. 2018 legal brief filed by the EPA in the D.C. Circuit Court of Appeals, it "has neither approved nor disapproved the state plans that were timely submitted" or "promulgated any federal plans." The seven states contend that this "constitutes a violation of a nondiscretionary duty under the Clean Air Act" and merits potential litigation.
Dive Insight:
The New Source Performance Standards and EG rules were finalized by the Obama administration in 2016 as part of the EPA's focus on reducing methane emissions under former Administrator Gina McCarthy. Later that year, Waste Management, Republic Services, the National Waste & Recycling Association and the Solid Waste Association of North America unsuccessfully filed a challenge petition. Following the election of President Trump, that group found a more receptive audience with Administrator Scott Pruitt's team.
The EPA informed them in early May 2017 that it would be issuing a 90-day stay on both rules. At the time, the agency estimated it would cost more than $100 million per year to implement these rules. Throughout this whole process, the industry's main complaint has been less about money and more about compliance concerns about how the new rules interact with preexisting regulation.
As seen with this latest letter, supporters of the two rules view them as critical to reducing methane emissions that have an outsized effect on causing rapid climate change. The Natural Resources Defense Council filed a legal challenge to vacate the stay last summer, though it ended up expiring in August with no further action from the agency at that time.
In October, the EPA told Waste Dive any states that hadn't submitted EG plans would not be subject to sanctions and there were no plans to prioritize the review of those plans. The EPA also said it planned to realign reconsideration of the NSPS with the Risk and Technology Review due by 2020. At the time, this lack of urgency seemed to attract little media or legal attention.
Yet the legal action has continued. This latest notice of intent to sue contends that because the stay didn't formally take effect until May 31 (one day after state plans were due), and the retroactive changes weren't made to the submission deadline, the timeline remains the same.
