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Backlash in Guidance as Rulemaking

July 29, 2011

The Environmental Protection Agency was subject to a policymaking setback when a federal appeals court struck down guidance outlining alternatives to a penalty program under the Clean Air Act (CAA) for areas in violation of the air quality standards for ozone.

The U.S. Court of Appeals for the District of Columbia Circuit declared that EPA overstepped its authority and essentially promulgated a regulation disguised as nonbinding guidance.
Guidance is defined by the Administrative Procedure Act as a document that clarifies how an agency will interpret a law, such as the CAA. Guidance, unlike a rule, is not a legally binding document and is not subject to notice and comment from the public. Formal rules provide the “backbone” of the regulatory process and guidance clarifies the law and provides information on how the rule will be implemented.
Although disputes over guidance versus rulemaking will continue in both Congress and the courts, it is clear that both will continue to impact environmental rulemaking.
This post was authored by GLLF’s intern, Lane Oling, a 2L at the University of Wisconsin Law School.


DNR Seeks to Slow Rulemaking on Waterway Development

July 29, 2011

The Department of Natural Resources wants to delay the implementation of rules that affect development along Wisconsin waterways for two years. These controversial regulations were approved in 2009 under Governor Doyle.
Now, under the Walker administration, the DNR wants to slow down rulemaking. A legislative panel wants to examine the approved rules before they are implemented. DNR Secretary Cathy Stepp is asking the Natural Resources Board to extend the “phase-in” of the law so that local governments have more time to implement zoning laws that affect construction along Wisconsin’s navigable waterways.
Additionally, the Joint Committee for the Review of Administrative Rules held a public hearing on the rules in Minocqua, Tuesday, July 26.
The rules were advanced by the DNR to control development near rivers, lakes and streams. In general, the rules require that homes be 75 feet away from waterways, but under these new regulations, existing homes less than 75 feet away from waterways can be expanded by adding another floor. The new regulations also set limits on the amounts of impervious surfaces, like roofs driveways or patios for property owners within 300 feet of rivers and lakes.
See the Wisconsin Administrative Code Chapter NR 115 rules approved in 2009.
This post was authored by GLLF’s intern, Lane Oling, a 2L at the University of Wisconsin Law School.

EPA’s Cross-State Air Pollution Rule and its Effect on Wisconsin

July 25, 2011


On Wednesday July 6, 2011, the EPA finalized the Cross-State Air Pollution Rule (CSAPR). The rule is effective January 1, 2012 and will replace the Clean Air Interstate Rule (CAIR). The rule requires 27 states, including Wisconsin, to improve air quality by reducing power plant emissions that cross state lines and contribute to nonattainment or maintenance concerns for ozone (O3) or fine particulate (PM2.5) National Ambient Air Quality Standards (NAAQS).

Emission Reductions

Specifically, the rule sets emissions caps for sulfur dioxide (SO2) and nitrogen oxides (NOx). In Wisconsin, during 2012-2013, annual emissions may not exceed 79,480 tons for SO2, and 31,628 tons for NOx. Ozone season NOx emissions may not exceed 13,704 tons.  Starting in 2014, Wisconsin's emission caps will become stricter, allowing 40,126 tons annually for SO2, 30,398 tons annually for NOx, and 13,216 tons for NOx during the ozone season.

Wisconsin Power Plant Emissions

EPA determined that 12 states - Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Nebraska, Ohio, Pennsylvania and West Virginia - contribute to nonattainment or maintenance concerns of the 2006 24-hour PM2.5 standard in Wisconsin.

Wisconsin contributes to nonattainment or maintenance concerns in Illinois, Indiana, Michigan and Ohio.

The EPA is adopting federal implementation plans (FIPs) for each of the states covered by this rule. The EPA is encouraging states to replace these FIPs with State Implementation Plans (SIPs) starting as early as 2013.

More information about the new rule can be found on the Great Lakes Legal Foundation Regulatory Watch website.

This post was authored by Great Lakes Legal Foundation intern, Lane Oling, a 2L at the University of Wisconsin Law School


Transparency in State Spending

July 19, 2011

A measure in the state budget passed last month requires the state to post online every purchase of $100 or more. The new requirement greatly expands the state’s reporting requirements and will offer the public a closer look at state expenditures.

The state must post the grant or contract for each expense, the agency doing the spending, the name and address of the individual or business being paid, and the amount and category of the spending.

One of the vetoes Governor Walker issued when he signed the budget was directed at this provision. The Legislature had given agencies until July 1, 2013, to comply, but Walker struck this language, and is directing agencies to begin reporting immediately.

Since 2006, the state has operated a similar program known as Contract Sunshine, which is supposed to show information on all state expenditures over $10,000.


DNR Releases Draft Regional Haze State Implementation Plan

July 15, 2011

The Wisconsin DNR recently released a draft state implementation plan (SIP) as a step toward complying with the federal Regional Haze Rule.  

In 1999, the EPA promulgated the Regional Haze Rule to improve air quality in national parks and wilderness areas. The rule requires states, in coordination with the EPA, National Park Service, U.S. Fish and Wildlife Service, and the U.S. Forest Service, to develop and implement air quality protection plans to reduce pollution that causes visibility impairment in 156 federally-protected parks and wilderness areas (mandatory Class I areas). The rule creates a regulatory goal of zero impairment of visibility from manmade emissions in these areas by 2064.

There are no mandatory Class I areas in the state; however, Wisconsin impacts the Boundary Waters wilderness area in Minnesota, the Seney wilderness area in Michigan, and Isle Royale national park in Michigan. In addition, the State of Vermont determined that Wisconsin significantly contributes to visibility impairment at Lye Brook Wilderness Area.

The first SIPs for regional haze were due in December 2007, but many states did not submit plans. On January 9, 2009 the EPA issued findings that 37 states, including Wisconsin, missed Clean Air Act deadlines for submitting plans, or elements of plans, for implementing EPA’s Regional Haze Program. Under the CAA section 110(c), EPA is required to promulgate a Federal Implementation Plan (FIP) within two years of the effective date of a finding that a state has failed to submit a SIP. The FIP requirement is void if a state submits a regional haze SIP, and EPA approves that SIP within the two year period.

The EPA has yet to issue a FIP despite the two year deadline, so it is likely that Wisconsin will be regulated by a future version of the proposed SIP rather than a FIP. The DNR plans to have a 30-day public comment period on the SIP in September 2011.

This post was authored by Emily Kelchen, a staff attorney at Great Lakes Legal Foundation.

EPA Opens Public Comment on Secondary Air Standards for Nitrogen and Sulfur Oxides

July 14, 2011

July 14, 2011 - Today the EPA proposed secondary air quality standards to protect the environment from nitrogen oxides (NOx) and sulfur oxides (SOx).


The EPA is planning to conduct a field pilot program to collect and analyze data to ensure the pollutant standards are updated and effective. In the meantime, the EPA is proposing a set of additional secondary standard for each pollutant. These new standards would be equal to the public health standards the EPA strengthened last year.
Sulfur oxides are emitted from fossil fuel combustion by power plants, mobile sources, large industries, and some from industrial processes. Nitrogen oxides are emitted from various sources, including power plants, vehicles, agricultural sources, and off road equipment.
The EPA is accepting comments for 60 days after the proposed secondary standard rule is published in the Federal Register. A final rule will be issued by March 2012.
For more information about the proposed rule and actions taken by the EPA visit their website.


This post was authored by GLLF's intern, Lane Oling, a 2L at the University of Wisconsin Law School.

Comment Period for Draft Guidance on Identifying Waters Protected by the Clean Water Act Extended

July 12, 2011
The EPA and the U.S. Army Corps of Engineers have extended the public comment period by 30 days for the draft guidance on Identifying Waters Protected by the Clean Water Act. The EPA and Corps of Engineers will take additional comment until July 31, 2011.
The comment period extension will not impact the schedule for finalizing the guidance or alter the intent to proceed with rulemaking. The original 60-day public comment period was set to expire on July 1, 2011.
This post was authored by GLLF's intern, Lane Oling, a 2L at the University of Wisconsin Law School.


Labor Unions Critical of Obama’s Environmental Agenda

July 12, 2011

According a recent Wall Street Journal article, several unions in key states are demanding that the Environmental Protection Agency soften new regulations aimed at pollution associated with coal-fired power plants. The unions fear that the nearly half a dozen rules expected to roll out within the next two years could mean thousands of job losses.
EPA officials believe such criticisms are premature because some rules in question have not yet been proposed. However, on some issues, the EPA has slowed the pace of its efforts, saying that the agency needs more time to consider the science and review comments of affected groups.
The EPA rule causing the most anxiety is one that seeks to reduce emissions of toxic air pollutants including mercury. An analysis by the miner’s union predicts jobs losses totaling as many as 250,000. Many of these jobs would come from the utility, mining and railroad sectors. The heaviest impact would be felt by the Rust Belt states that have many old coal plants.
Not all unions have such a grim view of the new rules. Some unions see the new rules as potential for the creation of thousands of jobs for workers who would build and install pollution control equipment.
The unions concerned with the new rules suggest that the EPA bases its standards on the performances of different coal types. This approach would mean a less aggressive timetable for reducing emissions – a trade off many environmentalists are reluctant to accept. 
This post was authored by GLLF’s intern, Lane Oling, a 2L at the University of Wisconsin Law School.