Preempted, Preempted Not

Posted on July 27, 2017 by Karen Crawford

First Circuit Rules that Puerto Rico Municipal Ordinances on Coal Ash Preempted

In mid-May, the First Circuit addressed whether a municipality may prohibit the beneficial use and disposal of coal ash at landfills within their borders when the state agency has authorized such activities.  In AES Puerto Rico, L.P. v. Trujillo-Panisse, No. 16-2052 (1st Cir. May 15, 2017), a coal fired power plant owner, AES-PR, challenged two municipal ordinances attempting such a prohibition as preempted by federal and Commonwealth law and were in violation of the United States and Puerto Rico constitutions.  Utility Solid Waste Activities Group and American Coal Ash Association participated on brief as amici curiae brief.  The district court granted summary judgment for the municipalities on AES’s federal claims and declined to exercise jurisdiction over the Commonwealth claims.

The First Circuit determined the ordinances could not be enforced to the extent they directly conflicted with Commonwealth law as promulgated by the Puerto Rico Environmental Quality Board, but reversed summary judgment in favor of the municipalities and remanded for the district court to enter judgment for AES-PR based on its claim of Commonwealth preemption.  The court reviewed the RCRA program and its intent to precipitate cooperation between the federal, state, and local governments.  After a serious discussion of the delegation of authority to states and the fact that Puerto Rico’s Environmental Quality Board was given authority to manage solid waste (including coal ash) by the Commonwealth, unlike the district court, the court determined the EQB resolutions (and permits) carry the force of law and its permits allowing disposal in a sanitary landfill supersede a local ordinance prohibiting that disposal.  Succinctly, the court pointed out that the Commonwealth’s public policy to give municipalities as much autonomy as possible is limited by a higher power and that “a municipality cannot ‘promote and further its own public policy’ if that policy conflicts with Commonwealth law.” 

NJ Appeals Court Finds Consumer Fraud Cases Against VW Not Preempted by CAA

This week, however, a three-judge panel of Superior Court of New Jersey, Appellate Division affirmed trial court rulings in two cases denying Volkswagen Group of America Inc.’s (VW) motions to dismiss the complaints, finding the CAA does not preempt such state court actions.  David. L. Felix, et al. v. Volkswagen Group of America Inc. and Eduardo Deang v. Volkswagen Group of America In. et al., No. A-0585-16T3 and A-086-16T3, July17, 2017, Sup. Ct. NJ – App. Div.  The motions argued the complaints were expressly or impliedly preempted by provisions of the CAA, citing language in 42 U.S.C.A. 7543(a), “… No state or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part.”  Both plaintiffs alleged misrepresentation and violations of New Jersey’s Consumer Fraud Act, among other claims.  The decision included interesting arguments on interpretation and attempted distinguishing of prior tobacco, product defect and airline deregulation cases.

With respect to express preemption, the court disagreed with VW’s argument that plaintiffs’ complaints are in reality attempts to enforce EPA’s emissions standards because plaintiffs would have to prove those standards were exceeded to prevail.  Instead, the court determined that the plaintiffs were not seeking to enforce an EPA emission standard or force the manufacturer to adopt a different emissions standard, but rather the claims were centered “on VW’s alleged deceitful, fraudulent practices and its alleged breach of a duty not to mislead consumers.” 

The court also determined that the CAA did not impliedly preempt plaintiffs’ claims because the savings clause explicitly contemplates continued state involvement in regulation of motor vehicles, and that because plaintiffs’ claims do not hinge on compliance with EPA standards, there is no direct conflict with the federal regulatory scheme.

THE CALIFORNIA AUTO EMISSIONS WAIVER – THE NEXT BIG CLEAN AIR ACT BATTLE?

Posted on July 26, 2017 by Charles S. Warren

The California Waiver is a unique provision of the Clean Air Act that lets California set its own auto emissions standards, which can then be adopted by other states as their emission standards.  Section 209 of the Clean Air Act basically provides that no state or other political subdivision can adopt or enforce any auto emission standards different from the federal auto emission standards.  The exemption in Section 209 allows for a waiver whereby California can adopt its own standards unless the EPA Administrator finds (1) the determination of the State is arbitrary and capricious, (2) such State does not need such State standards to meet compelling and extraordinary conditions, or (3) such State standards and enforcement procedures are not consistent with the federal standards in Section 202 of the Clean Air Act.

Section 177 of the Clean Air Act allows other states to adopt and enforce other auto emission standards if they are identical to the California standards for which a waiver has been granted.  This provision has allowed many other states to adopt the California standards which have had a profound effect on the auto industry and air pollution efforts.  At this point, 16 states have either adopted or are moving to adopt the California standards, including New York, New Jersey, Pennsylvania, Florida, Washington and Oregon.  This adds up to at least 135 million people or about 40 percent of the country.  In addition, car dealerships in states bordering states that have adopted the California standards are legally allowed to sell California compliant cars.  This means that there are many more people who will be buying cars that meet the California standard.  The result of all this activity is that cleaner cars are being sold in a great many areas of the country.

Since 1970, EPA has granted California 50 waivers and has only once denied a waiver.  That denial came from the George W. Bush EPA and dealt with a waiver covering greenhouse gas emissions in 2007.  California sued to challenge the denial of the waiver but the case was mooted by the subsequent granting of the waiver in 2009 by the Obama administration EPA.  The current waiver applies to model years 2022-2025 and was granted in 2012.

Earlier this year, the Trump administration was indicating that it might seek to revoke the California waiver.  There is no statutory provision for revoking a waiver and there has never been an attempt to revoke a waiver.  Any such attempt would provoke a titanic battle and many lawsuits.  The revocation effort seems to have lost some steam at this point and it appears the real battle will come when California requests a waiver for the model years 2025-2030.  Any action by the EPA to deny the next California waiver would likely be based on the contention that the waiver as it is applicable to greenhouse gas emissions is not needed by California to meet compelling and extraordinary conditions, since that provision was referring to conditions that affect California directly and locally.  The argument would be that pollutants dealing with climate change affect the whole world and are not unique to California.  This position would be strongly contested and it would be up to the courts to decide how it turns out, although the pro-environment side will likely prevail.

There is a great deal riding on this decision since the California standards have played a huge role in reducing pollution from mobile sources and are closely tied to increased fuel economy standards, which are an important part of the battle against climate change.

Trumping Trump on Climate Change

Posted on July 25, 2017 by Dan Esty

President Donald Trump’s decision to back away from the Obama Administration’s Clean Power Plan and other policies to reduce U.S. greenhouse gas (GHG) emissions in fulfillment of America’s commitment to the 2015 Paris Climate Change Agreement might be seen as bad news for the global environment.  And it is.  But the news is not quite as bad as many fear.  Even if the President’s actions slow progress toward the U.S. “nationally determined contribution” to the emissions reduction goals of the Paris Agreement – a cut of 26-28 percent by 2030 – that will not stop the overall downward trend in GHG emissions for several important reasons. 

First, American Presidents have limited executive authority, meaning that a number of the climate change policies put in place by President Obama cannot be reversed with a stroke of President Trump’s pen.  Second, the shift away from coal as America’s electricity generation fuel of choice will continue – driven by prior regulatory requirements and the economics of the energy marketplace.  Third, many critical decisions that shape the carbon footprint of a society are made not by presidents and prime ministers but by mayors, governors (or other sub-national elected officials), and corporate leaders.

President Trump’s March 28 Executive Order directs his EPA Administrator to “review” the prior administration’s Clean Power Plan and “as soon as practicable, suspend, revise, or rescind” it.  But this is not a simple process.  The Clean Power Plan represents a regulatory strategy for implementing a Clean Air Act obligation to control emissions from any air pollutant found to “endanger public health and public welfare.”  The Supreme Court confirmed in Massachusetts v. EPA (2007) that this obligation is not discretionary with regard to greenhouse gas emissions. 

Thus, the Trump EPA can change the strategy for responding to greenhouse gases but cannot walk away from its obligation to control them unless it reverses the “endangerment” finding issued by former EPA Administrator Lisa Jackson in 2009.  To undo this prior conclusion, current EPA Administrator Scott Pruitt would need to establish a new scientific foundation that would justify a different policy conclusion.  Given the overwhelming scientific consensus that the build-up of greenhouse gas emissions in the atmosphere threatens to produce various harmful effects – including sea level rise, increased frequency and intensity of hurricanes and other windstorms, changed rainfall patterns, as well as more frequent droughts, floods, and forest fires – such an effort would be quickly challenged in any number of courts and almost certainly overturned.  Indeed, in the face of overwhelming scientific evidence that the build-up of GHG emissions in the atmosphere is a problem, a “non-endangerment” conclusion would be an almost paradigmatic example of an “arbitrary and capricious” regulatory action.  EPA will, therefore, almost certainly choose to revise the Clean Power Plan rather than dump it altogether. 

In introducing his climate change executive order, President Trump promised that his actions would bring back American coal production and power generation.  No such thing will happen.  Hundreds of U.S. coal-fired power plants have been shut down in the past decade – most in response to the Obama Administration’s Mercury and Air Toxics Standards.  These plants will not be reopening.

Not only have coal-burning power plants been the target of numerous regulatory restrictions, they also now face stiff competition from cleaner-burning and cheaper natural gas power generation as well as rapidly expanding renewable power production.  Nothing President Trump has done will reverse these trends.  Indeed, given the momentum toward a clean energy future and the prospects that a future president will redirect the Trump climate change policies and restore the U.S. commitment to lower greenhouse gas emissions, no utility is going to invest in new coal-fired power plants, and many power generators will proceed with planned retirements of existing coal units.  Simply put, the President’s shifting of gears on climate change policy does not over-ride the broader economic logic for movement toward cleaner and cheaper energy options.

In the face of the President’s disinterest in the Paris Agreement in particular and his hostility toward environmental regulation more broadly, leadership and political support for climate change action in the United States has shifted out of Washington.  Of particular note, more than 200 mayors, 10 governors, and nearly 1700 business leaders have formed a coalition called America’s Pledge that aims to ensure that the U.S. emissions reduction commitment is fulfilled.  Led by California Governor Jerry Brown and former New York Mayor Michael Bloomberg, the participants in America’s Pledge are pushing forward with climate action plans at the city, state, and corporate scales. 

Some of these leaders, moreover, have expressed interest in formally “signing” the 2015 Paris Agreement if the United States ends up withdrawing.  While there are constitutional limits to what sub-national jurisdictions can do in the international realm, legal work is underway to find a mechanism that would allow these mayors, governors, and CEOs to make a commitment to the goals of the Paris Agreement “to the full extent of their authority.”

The breadth and depth of these non-federal-government climate change initiatives means that American greenhouse gas emissions will continue to decrease regardless of what energy policies the Trump Administration puts forward.  In fact, one of the critical features of the climate change strategy that the world community agreed upon in Paris in 2015 was a shift from a top-down approach that relied upon national government actions to a bottom-up game plan for emissions reductions that called upon a much wider array of actors to join the effort to promote energy efficiency and a shift toward renewable power.

As it turns out, presidents and prime ministers don’t have that much say over the day-to-day decisions that determine the carbon footprints of their societies.  Mayors, governors, and CEOs are really the ones who make the critical choices about transportation options, housing and development patterns, product and production strategies, technology and infrastructure investments, and other decisions that determine the trajectory of greenhouse gas emissions.

Thus, while President Trump can take the United States out of a leadership role in the global effort to combat climate change, he will not be able to reverse the domestic momentum for action on climate change.  His policies may slow the pace of U.S. emissions reductions, but movement toward a decarbonized energy future will continue.

Reports of the Death of the SEP Have Not Been Greatly Exaggerated

Posted on July 21, 2017 by Seth Jaffe

Last month, Attorney General Sessions barred DOJ from entering into settlements that provide for payments to non-governmental persons not a party to the dispute.  At the time, I peered into my crystal ball and proclaimed that the practice of incorporating supplemental environmental projects into environmental settlements was “hanging by a thread.” For once, my speculation was accurate.

Yesterday, DOJ notified the District Court for the District of Columbia that the United States and Harley-Davidson had jointly agreed to modify a consent decree that had already been lodged with the Court.  The original decree provided for a $3 million SEP, to replace old woodstoves.  Notwithstanding that SEPs have traditionally been used to mitigate penalty amounts, the modified decree did not increase the penalty to Harley-Davidson; it merely eliminated the SEP.  Well done, Harley-Davidson lawyers!

In modifying the decree, DOJ explicitly cited to the Sessions memorandum, noting simply that:

Questions exist as to whether this mitigation project is consistent with the new policy.

Ya’ think?

The only question remaining at this point is whether other defendants will be able, like Harley-Davidson, simply to pay smaller penalties or whether, going forward, penalties will increase where SEPs are unavailable as mitigation.  I know where this administration’s proclivities lie, but I’m going to stop speculating while I’m ahead of the game.

HOW DOES A DEMOCRACY DECIDE SCIENTIFIC FACTS? SCOTT PRUITT’S RED TEAM/BLUE TEAM CLIMATE REALITY SHOW

Posted on July 19, 2017 by Karl Coplan

Reuters reports that EPA Administrator Scott Pruitt, responding to a suggestion in a Wall Street Journal editorial, is planning to set up a “red team/blue team” war-game style debate to resolve the question in his mind about the validity of scientific predictions of catastrophic anthropogenic global warming. According to Administrator Pruitt, this “debate” would be televised. Pruitt said that this debate was “not necessarily” meant to undermine EPA’s 2009 Endangerment Finding that triggers Clean Air Act regulation of greenhouse gases, and added that he would prefer that Congress weigh in on the matter.

The prospect of a reality television show style competition designed to resolve for the United States a matter of scientific consensus reached by just about every other nation in the world should concern anyone hoping that EPA’s initial moves to regulate greenhouse gases might survive the Trump administration. But this prospect also illustrates tensions between the administrative state that allows a coherent system of environmental regulation to exist, and the American polity’s identity as a self-governing democracy where political truth is determined by trial in the “marketplace of ideas” guaranteed by First Amendment freedom of expression.

This “marketplace of ideas” metaphor, of course, was first voiced by Justice Oliver Wendell Holmes in his eloquent dissent in Abrams v. United States :

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In a later dissent, in Gitlow v. United States, Holmes expressed that his commitment to the results of this free competition in ideas was so strong that should the arguments in favor of a proletarian dictatorship gain majority approval, he must accept that result.

The foundations of the administrative state are in tension with this notion of popular resolution of scientific and economic truths. Administrative agencies are given authority to resolve scientific and technical issues while carrying out broad Congressional mandates, such as the Clean Air Act mandate to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” The basic theory behind this delegation of authority is threefold – 1) that agencies will be staffed by experts better able to resolve technical and scientific issues than Congress; 2) that Congress lacks the resources and attention to engage in the details of regulatory decisionmaking; and 3) that some policy decisions must be at least partially insulated from the political process.

But this delegation of scientific and economic factfinding is always conditional – Congress always retains the power to withdraw the delegation or overrule agency determinations through affirmative legislation.

Is the urgency of climate change a political truth on the order of the choice between socialism and capitalism? Is our commitment to the verdict of the marketplace of ideas in a democracy stronger than our commitment to urgent action to address climate change?

On the other hand a television reality show format may not be what Justice Holmes had in mind when he posited his marketplace of ideas. Further thoughts on this topic appear in an article I wrote a few years back, “Climate Change, Political Truth, and the Marketplace of Ideas.”

When the “Why” is Wordless

Posted on July 17, 2017 by Janet Coit

This past weekend, I took a long walk in Colt State Park in Bristol, Rhode Island. The sun was sparkling off the waves on Narragansett Bay and all sorts of people were similarly drawn to the pleasant shore-side landscape. My stroll through the park lifted my spirits and reminded me of the power of such experiences.

One of my favorite parts of my job is working to conserve habitats and get people outdoors to enjoy our parks and nature preserves. And while I believe – and often explain – that the health of the economy is inextricably linked with the health of the environment, the intangible aspects of natural areas never fail to inspire me. Rachel Carson wrote of a “sense of wonder” elicited by observing nature. Yes! When I see the brilliant flash of a scarlet tanager, otters frolicking in the water, or scores of river herring returning upriver, I am thrilled to the core. What gifts to have these creatures in our world! And we still have a lot to learn about the complex natural systems that sustain them.

In his book My Green Manifesto: Down the Charles River in Pursuit of New Environmentalism, David Gessner posits that the current environmental movement is too cerebral, and that there is joy found in nature that people like Rachel Carson understood. He writes, “And the deeper story begins not with a theory but with particular places . . . that particular Homo sapiens fall deeply and strangely in love with. Later, all this becomes laws and rules and books and essays. But it begins well before and well below that. What later becomes words begins with wordlessness.”

I so relate to that connection with a particular place. Think of a spot you love – where you can feel nature around you. For many those places are on the coast, filled with salt, sand and sounds. Mine is the forest by a lake. Wherever it exists, having a natural place in which to revel is often what makes a person support strong environmental laws and care about protecting wild places. Let’s face it: our views are shaped by our experiences.

The connections people find in nature are central to our work. Making sure urbanites have access to safe parks and children have the chance to play outside improves people’s health now and ensures the development of environmental stewards for the future. Grandparents are often influential, guiding younger generations to explore nature. The “rewilding” of rivers that run through our cities and restoration of green corridors bring nature closer, providing children in more neighborhoods the opportunity to observe a hawk soaring above or the shadows of fish darting just below the surface.

Change is inevitable. As seas rise, species compositions change, and intense storms – and generations – come and go, one thing we know is that undeveloped habitats and larger intact systems are healthier, and have a better chance to withstand storms and stressors. Informed by science, we must help the places we love be resilient, and to have a chance to rebound and thrive. This means working to identify, reduce and mitigate harms from inevitable natural and manmade impacts.

Last month, my father John Coit died, after 93 full years. After his death, I felt an urgent need to visit his special place in the foothills of the Adirondacks. I found him there in the ferns, the dark water, and the soft breeze. I found solace in the wordless magic of nature that carries poignant memories and delights the senses. These experiences fuel my drive to protect the environment – for wildlife, for our children and grandchildren, and for something wordless.

“Move Not Away from Struggle, But from Stillness”

Posted on July 13, 2017 by Renee Cipriano

Out of struggle and challenges comes a brighter future.  For environmental practitioners, the time is now to engage in struggle. 

I witnessed firsthand the creation and evolution of the Environmental Council of the States (ECOS).  Back in 1994, ECOS was the brainchild of several state environmental commissioners, including Mary Gade, the then Director of the Illinois Environmental Protection Agency.  In ECOS’s early years, the federal-state relationship was evolving, and state regulatory sophistication could not be denied.  The path to create a strong state organization with meaning was not easy and the young organization was forced to deal many struggles coming into its own.  As Ms. Gade explained in a 1996 American Bar Association article published in Natural Resources & the Environment, Winter 1996, “[t]he states were coming of age.  The formation of ECOS is a quantum leap forward in the ongoing shift in the balance of responsibility for protecting the nation’s environment.” She continued, “ECOS may not seem at all exceptional, yet more than any other environmental organization, it embodies the rising environmental leadership of states and the long overdue transfer of power in the federal–state relationship.”

Challenges and struggles have characterized the federal-state partnership upon which the nation’s regulatory system was built. The formation of ECOS helped the states collaborate and deal with the struggles together head on.  Today, no question exists that states are primarily responsible for the administration of environmental laws in this country, assuming more than 96% of the delegable authorities under federal law.  The states are on the frontline of enforcement, permitting, innovation and streamlining efforts.  The public looks to them first for answers.  Industry relies on the states to be effective partners, balancing the needs of industry and the public while allowing industry to run operations efficiently and in compliance.

Over the life of ECOS, state environmental regulators have been delegated more responsibility for environmental protection, education and enforcement but the resources provided them have measurably decreased.  Federal monies dedicated to financially support state programs have declined and are jeopardized further by proposed budget cuts.  At the same time, state elected officials face their own budget crises.  In response, state environmental protection agencies are being challenged to operate with little to no state funding and instead rely on federal funding and increased fees imposed on regulated entities.

With funding issues looming larger today than ever, there is a need to revisit both our national approach to environmental protection and, whether we are effectively enlisting the federal-state partnership to avoid staff duplication, regulatory confusion and resource waste.  For example, states and stakeholders should be able to rely on the state’s implementation of federally approved state programs without facing contrary interpretations from U.S. EPA.  Some state decisions are scrutinized repeatedly, with no meaningful purpose or resulting benefit; sometimes years after decisions are made. Stakeholders should be able to expect that if U.S. EPA identifies a deficiency in the state administration of a delegated program, U.S EPA will act swiftly under the authority granted to it by Congress to demand a fix to deficiency and approve the state’s modification just as timely.  And states should be able to rely on U.S. EPA to ensure that state delegated programs it approves set a level playing field across the nation to avoid disadvantaging economic growth in one state simply because another state’s approved program does not quite meet U.S. EPA’s interpretation of federal standards.

This brings us to the current Administration’s work around regulatory reform.  See President Trump, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017); President Trump, E.O. 13777, “Enforcing the Regulatory Reform Agenda” (Feb. 24, 2017); EPA, Evaluation of Existing Regulations (Apr. 13, 2017).  Although many see “regulatory reform” under a Pruitt U.S. EPA as the end of environmental protection, I prefer to see it as an opportunity to examine holistically our current environmental regulatory framework and identify innovative ways to build on our environmental successes.  Even more importantly, I also see it as an opportunity to reinvigorate the national conversation around the federal-state relationship and embrace more fully the unparalleled state leadership we have in our country.  There is a rightful place for both U.S. EPA and the states as we move towards addressing our future environmental challenges but we can no longer support or afford duplication and burden without purpose.

In June, 2017, ECOS issued a document entitled COOPERATIVE FEDERALISM 2.0: Achieving and maintaining a Clean Environmental and Protecting Public Health.  Under the leadership of Executive Director and General Counsel Alexandra Dunn, and through a consensus based process among members of ECOS, this blueprint for the future presents both the principles that should guide the federal-state relationship and lists the important “policy neutral issues” where application of cooperative federalism could be focused.  This document is not only insightful but timely and provides the opportunity for positive reforms that will allow the nation to continue its great work of environmental protection into the future.  It is a must read.

My yoga teacher always tells the class to “move away from struggle” when she is challenging us with new and different yoga moves. I find though, that unless I struggle, my moves will never improve.   Engaging in the process of change can be a struggle—from start to finish.  But we cannot do better if we don’t.  The national conversation is now, and we are only wasting our opportunity for an even better environmental regulatory system for the future if we decide to move away from struggle and move to stillness.

NGOs 1, Trump EPA 0: The First Skirmish in the Great Environmental Rollback War Goes to the Greens

Posted on July 11, 2017 by Seth Jaffe

Last week, the D.C. Circuit Court of Appeals handed environmentalists at least a temporary win in what I think was the first case to reach judicial decision in Scott Pruitt’s great environmental roll-back tour of 2017.  The Court rejected EPA’s effort to stay the effective date of the New Source Performance Standards for fugitive emissions from oil and natural gas operations, pending EPA’s reconsideration of certain aspects of the Obama-era rule.

Notwithstanding Judge Brown’s dissent, EPA’s position on the merits seemed barely credible.  I understand the argument that the stay was not final agency action and thus not judiciable.  It just doesn’t seem compelling to me.  If EPA had amended to rule to extend the compliance deadlines, that clearly would have been subject to judicial review.  Why should the answer be different because EPA styles its action as a stay, rather than a revision to the regulations?  The impact is exactly the same.

As to EPA’s position that the four issues which it was reconsidering could not have been addressed during the original rulemaking by the industry groups now seeking reconsideration, EPA’s position was almost embarrassing.  As the Court repeatedly demonstrated, not only could the industry groups have addressed the issues during the original rulemaking, but they actually did so.  Moreover, EPA did consider those comments and, at least in parts, adopted them in the final rule.  My favorite example is the court’s discussion regarding the criteria for exemption for well-site pneumatic pumps.  As the Court noted:

[The American Petroleum Institute] … proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal.

The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption.

The real question at this point is whether this decision is any kind of harbinger.  Practitioners know that the record of the Bush EPA in rolling back Clinton rules was shockingly poor, given Chevron deference.  Are we going to see the same again?  The Court threw EPA what could prove to be a rather large fig leaf by noting that the decision does not prevent EPA from reconsidering the methane rule.  The Court also quoted FCC v. Fox Television Stations – the same case on which EPA is relying in its rollback of the WOTUS rule:

[EPA] is free to [reconsider the rule] as long as “the new policy is permissible under the statute.., there are good reasons for it, and … the agency believes it to be better.”

This is where the battles are going to be fought over the next several years.