2010 National Waterways Conference

50th Anniversary Annual Meeting

Issues Updates: Issues Updates: Environmental Environmental

Washington:Here to Help?

September 23, 2010

William A. Anderson, IIWilliams Mullen1666 K Street, N.W., Suite 1200Washington, D.C. 20006Private line: 1.202.327.5060Email: wanderson@williamsmullen.com

Washington: Here to Help?

• Clean Air Act – Climate Change

• Clean Water Act

• Water Resource Development

Clean Air Act—Climate Change

• What’s the Score?

– Supreme Court 1

– EPA 5

– Congress 0

Supreme Court: Massachusetts v. EPA

• Greenhouse Gases (GHGs) are “air pollutants” under Clean Air Act

• EPA may regulate them under the CAA

• EPA must regulate GHGs from vehicles or explain why not

EPA 5

• Endangerment Finding

• GHG Emissions Standards for Vehicles

• Mandatory GHG Reporting Rule

• “Tailoring” Rule

• Permit Rule

EPA Endangerment Finding• Trigger for Regulation

– Mobile sources: Vehicles and engines– Criteria pollutants

• “Numerous or diverse” sources

• National Ambient Air Quality Standards

• State Implementation Plans

• GHGs “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare”

GHG Standards for Vehicles

• Administration announced May 2009

• Auto industry is on board

• Become effective for MY 2012-2016– Cars and Light Trucks– CAFE Standards 25 to 35.5 MPG

• May 2010, President ordered EPA & DOT to set standards for Heavy-Duty Trucks and Post-2016 MYs

EPA Mandatory GHG Reporting Rule• Applies to:

– Suppliers of fossil fuels and industrial gases– Manufacturers of vehicles and engines

– Sources over 25,000 TPY CO2e

– Initially 31 of 42 proposed source categories

• Effective 12/29/2009– First reporting period: 01/01-12/31/2010– Initial reports due by March 31, 2011

• Several amendments added source categories• Will provide a basis for inventory, regulation

EPA “Tailoring” Rule

• New Source Review and Title V Permits

• NSR: PSD & Non-Attainment– Phased extension of permit requirement– 250 TPY → 100,000 TPY New– Modifications → 75,000 TPY Increase– BACT or LAER

• Title V Permit Requirement– 100 TPY → 100,000 TPY

EPA Permits Rule

• States administer PSD and Title V Programs

• Some unable or unwilling to issue CO2 permits

• EPA is issuing a rule to take over

Congress is Locked “in Irons”• Can’t move unless the winds shift

• Cap-and-Trade Proposals– House passed American Clean Energy &

Security Act (“ACES”)– Senate EPW: Boxer’s Lieberman-Warner

Version– K-L-G compromise stalled

• Proposals to Trim EPA’s Sails– Murkowski: Deny EPA Jurisdiction– Rockefeller: 2-year delay

Clean Water Act

• Oberstar Bill — 2009 Reprise

• Permits for Vessel Discharges

Americas Commitment to Clean Water Act

• H.R. 5088, introduced April 21, 2010• Replaces 2008 “Clean Water Restoration Act”• Overturns SWANCC and Rapanos• Extends to wholly intrastate lakes, ponds,

potholes and intermittent streams• “Exempts” existing waste treatment systems

and croplands • EPA is reportedly at work on a rule

Permits for Vessel Discharges • 9th Circuit Decision

– Nationwide effect– Decision covered all vessel discharges

• EPA issued permit by rule for larger vessels• Pub. L. 110-299: Congress postponed effect for

recreational, fishing, commercial vessels (< 79 ft.)

• Pub. L. 111-215: Signed S. 3372 on July 30

– Exempts ~ 140,000 fishing boats, commercial vessels

– Extends till 12/18/2013

Water Resource Development

• Potential Obstacles:

– National Environmental Policy Act

– Endangered Species Act

– Historic Preservation Act

– Fish & Wildlife Coordination Act

– Etc.

WRD Projects: Potential Solution Miccosukee Tribe v. Corps of Engineers• Challenge to bridge project on Tamiami Highway• Omnibus Appropriations Act of 2009:

– Notwithstanding any other provision of law– Immediately and without further delay– shall . . . Construct

• Court held Appropriations Act repealed NEPA, ESA, all other laws– Courts had no jurisdiction– Dismissed Tribe’s challenges

CONCLUSIONS • Congress is gridlocked on climate change

• EPA is moving forward aggressively

• There’s risk of expanded EPA jurisdiction

• Fishing boats and vessels under 79 ft. have 3 more years till permits

• Environmental objections can block or delay WRD projects; but a “notwithstanding” clause is a solution.

COMMENTS or QUESTIONS?

Further Information: William A. Anderson, IIWilliams Mullen1666 K Street, N.W., Suite 1200Washington, D.C. 20006Private line: 1.202.327.5060Email: wanderson@williamsmullen.com