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What We Are Reading, October 3: Cement Plant Retrofits, Critical Habitat Land Grabs, and Job Losses Under the Clean Air Act

Posted in Clean Air Act, Endangered/Threatened Species, Natural Resources and Environment, Rule Making

This week has been a week of catching up, so some of this may be old news to you, but maybe you have a tall stack of things you aspire to read someday and you’ll have some sympathy…

St. Mary’s Cement Inc. Against the EPA
Out of the Sixth Circuit, by way of Michigan, a case is brewing that pits St. Mary’s Cement Inc. against the EPA. Why am I reading it? Because the Michigan in question is my hometown, Charlevoix, Michigan, and the cement plant in question is the former Medusa Cement plant that we photoshopped out of all of my childhood pictures of days at  Lake Michigan (before photoshop was a thing). I digress. St. Mary’s has taken its fight over the application of an EPA rule that requires it to retrofit one of its plants with technology to control emissions of nitrogen oxides and sulfur dioxide to the Sixth Circuit. The case involves the distinction between reconstructing existing facilities (thereby subjecting them to the NSPS emissions limits) and modifying facilities, which are not regulated (if they weren’t already) unless there is an emissions increase. The relevance of the distinction is that if the Medusa plant was reconstructed in 1978, then it was not “in existence” on August 7, 1977, and cannot be subject to “best available retrofit technology” emissions limits (the so-called BART-eligibility rule). Nostalgia alone will keep me following this debate. The St. Mary’s Cement Brief is here and has a well-written, fairly straightforward history of the development of the PSD and NSPS regulations.

Markle Interests v. U.S. Fish and Wildlife
From the Eastern District of Louisiana is the 49 page decision in Markle Interests v. U.S. Fish and Wildlife. The decision was issued on August 22, just two days after the court heard oral argument, and it’s clear to even the casual reader (of 49 pages!) that the Court was not excited to be ruling for the defendants. The case involves one of our locals, Weyerhaeuser, as a plaintiff in a battle over FWS final designation of critical habitat for the dusky gopher frog (formerly known as the Mississippi gopher frog). In the words of the court, the government’s action is “remarkably intrusive and has all the hallmarks of governmental insensitivity to private property.” So what of this government action and what might it portend for us in the northwest? FWS designated as “critical habitat” land unoccupied by the gopher frog but that might become habitat. If this is true in Louisiana, it’s especially impactful in our western forest land, where northern spotted owls and marbled murrelets might find habitat.

Murray Energy Corp.’s Lawsuit Against the EPA
And, from West Virginia, an order refusing to dismiss Murray Energy Corp.’s lawsuit against the EPA. The Court held that the Murray had adequately plead that the Clean Air Act imposes a non-discretionary duty on the EPA to evaluate job losses as a result of enforcing the act, including losses that might be caused by plant closure. (The Clean Air Act section in question is § 321(a), which says that the EPA “shall conduct continuing evaluations of potential loss or shifts of employment… [including] threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement” of the CAA. As the court explains, the word “shall” is a command that leaves little, if anything, to discretion.)