2020 Environmental Real Estate IssuesA three-judge panel of all Republican appointees on the U.S. Court of Appeals for the Fifth Circuit (two appointed by President Trump) agreed with several environmental groups and rejected as too lenient effluent limitation guidelines (ELGs) the Obama-era EPA issued for steam electric power generating plants.

In what may seem a reversal of expected roles, in Southwestern Electric Power Company v. EPA, the 5th Circuit vacated ELGs that would allow power plants to continue to use decades-old technology to treat some wastewater streams.  The 5th Circuit harshly criticized the basis for the ELGs, saying EPA’s approach would be like Apple claiming to unveil a new iMac and then presenting a Commodore 64.

ELGs Part of a Broader EPA Rule

Electric companies and industry groups filed challenges to an EPA Final Rule that included the ELGs.  As is often the case, several environmental groups also challenged the Final Rule.  The 5th Circuit severed parts of the case and then considered only the environmental groups’ challenge to the ELGs.  Thus, the case style has a power company’s name, but this opinion addresses challenges to the ELGs by the environmental groups.

1982 Technology Not “Best Available” in 2019

The Clean Water Act (CWA) requires EPA to issue ELGs based on technology.  Prior to 1989, the technology standard was “best practicable control technology currently available” (BPT); since March 31, 1989, the standard has been “best available technology economically achievable” (BAT), which is more stringent.

For some power plant wastewater streams, EPA concluded what was BPT in 1982 would also meet the more stringent BAT in 2019 and for at least several more years, despite an administrative record showing the 1982 technology was seriously deficient.  The 5th Circuit said EPA had no evidence the “outdated, ineffective and inferior technology” of 1982 was BAT for any waste stream in 2019.

EPA argued the ELGs were consistent with the broad discretion the CWA gives to it.  The 5th Circuit rejected that argument, saying EPA had exceeded statutory bounds and these ELGs fell far short of the “reasoned decision making” required by the CWA.

The 5th Circuit vacated the ELGs for these streams and remanded them to EPA for reconsideration.

For a copy of the 5th Circuit’s opinion, http://www.ca5.uscourts.gov/opinions/pub/15/15-60821-CV0.pdf