|President Trump shaking hands with
his EPA Administrator, Scott Pruitt, a
prominent climate change skeptic.
The Hearth Patio & Barbecue Association (HPBA) moved to delay its lawsuit to allow the Trump administration time to review the settlement proposals that HPBA submitted in 2015 and 2016 and re-evaluate whether some issues can be settled out of court. The EPA and the environmental groups who intervened did not oppose the delay. They filed their motion
with the US Court of Appeals weeks before they would have had to meet the first filing deadline.
The original suit was consolidated to include challenges from HPBA, the Pellet Fuel Institute (FPI), Tulikivi and Richard Burns and Company. In November 2016, the EPA informed HPBA that it would not continue in settlement talks, but they did reach an amicable settlement with Tulikivi, a masonry heater company that wanted masonry heaters to be a regulated technology under the NSPS. The EPA is seeking additional information with regard to PFI’s lawsuit.
On March 16, 2017, the United States Court of Appeals approved the 90-day delay sought by HPBA and set a new briefing schedule
for the parties that plays out through the end of 2017. HPBA must file its brief with the court on June 26, laying out its final list of issues that it intends to litigate. After that, the EPA responds with its positions on September 26, revealing how it will defend those portions of their regulations.
Less than a month later, the interveners must file their briefs. Interveners include the American Lung Association, Clean Air Council, and the Environment and Human Health, Inc. They are represented by Timothy Ballo of Earthjustice.
HPBA is simultaneously moving a bill in Congress to delay the 2020 provisions of the NSPS by 3 years, which in turn will give the legal proceedings time to play out. Another bill would erase the wood heater NSPS altogether. HPBA does not support this, but some individual boiler and pellet producers support it.
“The Trump Administration is a wild card for all parties in the lawsuit and the Alliance for Green Heat urges all parties to support the core provisions of the NSPS,” said John Ackerly of the Alliance for Green Heat. “For the future of wood heating in the US, we need to protect the transition to cord wood testing and adopt affordable test methods that reflect how consumers use stoves,” Ackerly added.
A blog “Hearth industry lists grounds for lawsuit against EPA” by the Alliance for Green Heat in 2015 laid out more details of the substance and process of the lawsuit. One often overlooked point is that HPBA does not appear to be challenging the 2020 emission standards for wood or pellet stoves, but only for outdoor wood boilers and warm air furnaces.
Petitioners’ Brief(s) June 26, 2017
Respondent’s Brief September 26, 2017
Intervenor for Respondent’s Brief October 18, 2017
Petitioners’ Reply Brief(s) November 8, 2017
Deferred Appendix November 15, 2017
Final Briefs November 22, 2017
Updated: May 31, 2015
On April 15, three air quality groups filed a motion to intervene in the lawsuit that a hearth industry group is bringing against the EPA over their new wood stove and boiler regulations. These groups said that their interest lies in “defending the Final Rule against challenges brought by industry groups seeking to further weaken or delay it.” This development is likely to make the suit more difficult for the hearth industry.
By May 15, at least 3 other parties had filed suit, including the Pellet Fuels Institute (PFI), Tulikivi and several fuel producers. PFI is challenging the EPA’s authority, under the Clean Air Act, to regulate fuel. Tulikivi, the primary factory-made masonry heater company, is suing because they are not being regulated and want to be. Unlike these groups with relatively narrow grounds for suing, HPBA will be raising many issues pertaining the Step 2 emission standards that take effect in 2020.
|The most prominent of the air quality groups, the American Lung Association (ALA), has a long history of both cooperating with the EPA and also being part of suits against it. Their motion suggests that the EPA’s new rule could or should be stricter, but they do not appear to be suing for stricter emissions standards. If the air quality groups had chosen to sue for stricter standards, they would have risked having the rule sent back to EPA for revision, which could backfire as a revised rule may not be issued until 2017 or later, when a Republican nominee could potentially be running the EPA.
The industry strategy may be precisely that –to send the rule back to EPA for revision, then to try to delay the revision until a more sympathetic administration takes over. But this strategy also poses a risk for industry, as the revised rule could emerge even stricter depending on who takes charge of the EPA.
The hearth industry group, the Hearth Patio and Barbecue Association (HPBA) – a loose amalgamation of wood, pellet, gas, grilling and outdoor furniture industries –has not yet laid out the basis of its suit and is not required to do so until the DC Circuit Court sets a briefing schedule. The date for oral argument is usually set 6 to 8 weeks after the date final briefs are due, and the three-judge panel for oral argument typically is not be announced until shortly before the argument.
HPBA will be focusing on challenging the stricter Step 2 emission standards, which take effect in 2020.
The other two air quality groups who joined the suit along with ALA are the Clean Air Council (CAC) and Environmentand Human Health, Inc.(EHH). CAC is based in Philadelphia and focuses on a wide array of energy and environmental issues. EHH is a small group based in Connecticut and has worked on outdoor wood boiler pollution for many years. All three groups, the ALA, CAC and EHH, were active in the comment process on the rule. Earthjustice, a public interest law firm that does not charge its clients, is representing the groups. The Environmental Defense Fund, which had teamed up with these three groups on earlier litigation, did not join this intervention.
In the groups’ motion to intervene, they said, the “Hearth Association will likely seek to weaken or delay the Final Rule’s requirements, as their comments during the rulemaking sought to weaken protective measures required under the Final Rule. For example, the Hearth Association objected to EPA’s use of emissions testing as a quality assurance tool to verify manufacturers’ ongoing compliance with emission standards.”
One strategic point of this lawsuit will be the selection of the 3-judge panel, which is done at random. Generally, insiders tend to consider Republican appointees more industry-friendly and Democratic appointees more inclined to support public health groups. History has shown that judges can be less-than-predicable in terms of how they deal with threshold legal issues such as standing, ripeness, procedural issues, or deference owed to the agency, and their decisions on these issues rarely break down along party lines. Although everyone will be interested in knowing the three judges that will form the panel, knowing who they are is rarely enough to predict how the case will turn out.
The new EPA rules cover everything from very clean pellet stoves to extremely dirty outdoor and indoor wood boilers. Most pellet stoves and some wood stoves, for example, already meet the 2020 standards and are very affordable. The industry lawsuit is likely to focus on 2020 standards that some indoor and outdoor wood boilers will struggle to meet, as well as 2020 wood stove standards that will raise the cost for some stoves. In the 6 months leading up to the announcement of the rule, the industry focused mainly on delaying the rule’s implementation for indoor wood boilers.
David Chung is adirect attorney for HPBA The US Courtroom of Appeals has consolidated at the very least 3 of the lawsuits in opposition to the EPA’s wooden heater rules collectively into a single lawsuit.  The Courtroom requested these a few parties, the Fireplace, Patio & Barbecue Association (HPBA), the Pellet Fuels Institute and Tulikivi, […]
On April 15, three air quality groups filed a motion to join the lawsuit that a hearth industry group is bringing against the EPA over their new wood stove and boiler regulations. These groups said that their interest lies in “defending the Final Rule against challenges brought by industry groups seeking to further weaken or delay […]
Posted by Earth Stove on February 11, 2014 with No Comments
In November, 2013 the Hearth, Patio & Barbecue Association (HPBA) joined a lawsuit brought against the EPA arguing that its members have and are suffered economic injury as a result of the EPA’s failure to enact the NSPS in a timely way. The lawsuit had already been brought by non-profits that are at odds with […]