Stacey Mitchell and David Quigley Quoted by Law360 on Impact of EPA Air Quality Shift

Law360 has quoted Akin Gump environment and natural resources partners Stacey Mitchell and David Quigley in the article “Low-Profile EPA Air Quality Shift Could Mean Big Changes.” The article recounts a change by the Environmental Protection Agency in how it assesses air pollution from closely linked facilities, which the article says could lead to an easier permitting process for some projects.

The article reports that the EPA made the change in an unpublicized letter to Pennsylvania environmental regulators. The central question being addressed was whether Meadowbrook Energy LLC’s proposed biogas processing facility and the nearby Keystone Sanitary Landfill Inc., which would provide the actual gas to Meadowbrook, should be considered under “common control.”

The EPA, according to Law360, said it currently does not have a plan to codify the changes through rulemaking or a more formal guidance. Mitchell said it could be that the EPA’s air office has bigger fish to fry in the more formal rulemaking context, such as rolling back and replacing the Clean Power Plan and revising auto emissions standards.

To the extent that the head of the EPA’s air office “doesn’t think something is going to rise to the level where it’s significant enough to do a rulemaking, this is a way to at least impact policy and hope that somebody in the future, rather than switching it back, may let it be,” Mitchell said.

Quigley, who leads Akin Gump’s environment and natural resources practice, thinks the formal rulemaking process is the appropriate avenue for such important policy changes. The letter format, he observed, was curious in light of the Justice Department’s new policy of not relying on guidance documents to create regulatory burdens.

“And this is certainly nothing more than a guidance document — if it even rises to the level of a guidance document,” Quigley noted. “So there will be some question about that.”