Thursday, August 23, 2012
Tuesday, August 21, 2012
A divided federal appeals court (US Federal Court of Appeals for the DC Circuit) handed down its ruling today addressing arguments that federal regulators went too far in adopting the Cross State Air Pollution Rule, which established new regulations to control air pollution throughout portions of the eastern United States.
The regulations at issue were adopted under the federal Clean Air Act's "good neighbor" provision, which requires upwind states to prevent sources within their borders from emitting air pollutants in amounts that contribute significantly to a downwind state's nonattainment of federal air quality standards. Its purpose is to establish a workable approach to interstate air pollution issues that have huge public health implications.
By a vote of 2-1, the court found that the Environmental Protection Agency had overstepped its legal authority in developing the rule. As a result, the Court vacated the offending provisions.
This ruling raises several concerns. First, it creates uncertainty over the timing and magnitude of the emissions restrictions that ultimately will be imposed on sources in upwind states. Also, delays in establishing regulations and requirements to upgrade or build cleaner generation will result in foregone emissions reductions and will fail to send clear market signals to make investments in cleaner generation, such as natural gas, renewable energy, and efficiency.
The EPA must continue administering the provisions of its previously-adopted Clean Air Interstate Rule pending adoption of a valid replacement, or until the U.S. Supreme Court agrees to review this decision and overturns it.
EME Homer City Generation, L.P. v. EPA, No. 11-1302.
Wednesday, August 15, 2012
In Robinson Township, et al. v. Commonwealth of Pennsylvania, 2012 Commonwealth LEXIS 222 (July 26, 2012), the Pennsylvania Commonwealth Court struck down important aspects of Pennsylvania’s new oil and gas law, known colloquially as Act 13. It held that the General Assembly: 1) improperly sought to compel local government to allow industrial gas operations in nearly all zoned -- including residential -- districts, and 2) failed to establish adequate standards for instances when the Department of Environmental Protection (DEP) may waive setback requirements designed to protect streams and other surface waters.
The Corbett administration appealed that decision to the state Supreme Court and is looking for something more than a "push." Here’s why.
The Commonwealth Court is comprised by law of nine "commissioned" judges. One of those nine, Judge Mary Hannah Leavitt, recused herself and therefore did not participate in the decision. By rule, seven judges are impaneled to hear a case en banc, meaning the entire court. Judge Renee Cohn Jubilerer, wife of former president pro tempore of the Senate (R — District 30), was not on the panel of seven. The decision to toss out parts of Act 13 was made by a vote of 4-3, with Democrats in the majority. Internal operating rules of the court provide that any "commissioned" judge not on the panel may file an "objection" to the majority opinion, and if that vote results in a tie of all "commissioned" judges, the opinion has to say so. If one looks at footnote one of the majority opinion, it explains that the opinion was being filed under a specific rule "because ... the vote of the remaining commissioned judges on those Counts resulted in a tie." So, the majority that struck down portions of Act 13 had the votes to do so because of the judges who were impaneled for this particular en banc hearing. The actual vote of "commissioned" judges was 4-4.
The Pennsylvania Supreme Court, on the other hand, is made up of seven justices. One of those seven, Justice Joan Orie Melvin, is currently suspended from participating on the court because of felony charges alleging that her judicial staff improperly worked on her 2003 and 2009 election bids. (Joan, of course, is the sister of state Sen. Jane Orie, who was convicted of ethics violations, theft of services, and forgery, and was sentenced to prison). That leaves six justices — split evenly between Democrats and Republicans — to hear the Commonwealth's Robinson appeal. Since Justice Orie Melvin’s suspension, the Supremes have split evenly on two different cases. It is not inconceivable that the same could happen in the Robinson appeal. A tie vote in the Supreme Court would mean that the majority vote of the Commonwealth Court would be affirmed.
And that is why the Corbett administration, which crafted and pushed through the overbearing zoning provisions of Act 13, is hoping for something other than a "push" before the Supreme Court. If the Supreme Court votes 3-3, the Corbett administration loses.