Focus recently on the courts does not mean that the agencies have been silent, and while they have been relatively quiet, they continue to raise some interesting issues.  For example, the Department of Energy (DOE) today published the latest in a long series of energy efficiency rulemakings and one that will affect every consumer.  The Environmental Protection Agency (EPA) took two steps recently that raise interesting questions:  a rule to more broadly adopt a court opinion, which may require notice and comment rulemaking; and release of a synthesis that directly implicates a proposed rule in which the extended public comment period is closed, but which may need to be reopened.


Florescent Lights & Analytical Balance:   With the demise of general incandescent lights, energy savings from florescent lights should be a given, but that was just the beginning.  The Department of Energy (DOE) today established new Energy Conservation Program: Energy Conservation Standards for General Service Fluorescent Lamps and Incandescent Reflector Lamps.  The Energy Policy and Conservation Act (EPCA) requires that DOE periodically evaluate the efficiency of various electricity consuming functions, in this case general service fluorescent lamps (GSFLs) and incandescent reflector lamps (IRLs).  EPCA requires that any new or amended energy conservation standard achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified.  The GSFLs will require increased efficiency, but DOE concluded that new IRLs would not be “economically justified.”  The final rule’s effective date is March 27, 2015, but compliance is required by January 26, 2018.

►  Using DOE’s summary, the benefits would exceed costs, but the analysis may not be consistent.  DOE may have exaggerated the benefits by introducing the amorphous Administration policy of benefits avoided through the “social cost of carbon” but does not appear to provide a corollary level of theoretical costs (perhaps the adverse aesthetic impact of narrow band light).  In this instance, the exaggeration may not really matter, but the intellectual honesty of levels of analysis should.  As with any use of a policy driven analysis, plumbing parallel depths of detail can skew the result, and that is the Administration’s policy.  The analytical balance may appear picayune, but sufficient unjustified imbalance could become arbitrary and capricious in violation of the Administrative Procedure Act (APA).

NESHAP & Affirmative Defenses:  The EPA responded to petitions for reconsideration of amendments to the National Emission Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial, and Institutional Boilers, including an expansion of a prior court decision.  The EPA’s response to petitions to reconsider the Area Source Boilers Rule requests public comment on five issues raised in the petitions for reconsideration.  EPA also proposes a limited number of technical corrections and amendments to the final rule.
The point of interest here is EPA’s deletion of provisions for an affirmative defense for malfunction in light of a recent court decision in NRDC v. EPA.  In that decision, the United States Court of Appeals for the District of Columbia Circuit vacated a provision of EPA’s “Portland cement” rule that provided an affirmative defense to penalties under the Clean Air Act (CAA) for equipment malfunctions entirely beyond the control of the source; the court found EPA had no such authority to provide an affirmative defense, that deciding whether penalties are “appropriate” was the province of the courts.

►  EPA may appropriately expand the court’s rational to provisions not before the court through a formal notice and comment rulemaking, but it seems questionable whether the reconsideration vehicle, with its limitations on public comments requested and issues to which EPA will or will not respond, is that vehicle.  The final rule might be justifiable because the court held that EPA had not authority for the provision, but EPA appears to apply the decision across different statutory provisions.  The EPA could clarify and broaden the request for comments, but inclusion in a narrow reconsideration causes confusion, and may become a source for more litigation.

WOTUS Supporting Documents & Public Comments:  EPA recently announced also the release of a final Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence in a Federal Register notice of availability.  EPA previously released an external review draft during the public comment period and the differences are not clear.  This review and synthesis becomes available well after EPA and the Army Corps of Engineers finally closed the extended comment period on Definition of Waters of the United States under the Clean Water Act (CWA).  As EPA admits, the report informs development of the EPA and Corps of Engineers’ proposed rule to clarify the definition of WOTUS, but, at least thus far, does not appear to have been posed to the appropriate docket.

►  The APA has long been interpreted to demand that critical documents reflecting the analysis to a proposed rule be made available for public comment.  The Synthesis would appear to be just such a document and EPA may have opened a door to criticism, and potentially vacatur of a WOTUS final rule, unless a public comment period is permitted.