As regular readers know, the tension between guidance and regulation is one of my favorite topics. My view is that, in general, guidance is too often used simply to avoid notice and comment rulemaking and that, once issued, it is treated by those implementing it in the agency street-level bureaucracy as though it were a rule. Nonetheless, guidance is sometimes appropriate. The recent decision in Sierra Club v.… More
Category Archives: NAAQS
Earlier this week, a divided 9th Circuit Court of Appeals affirmed entry of a consent decree between the Sierra Club and EPA, resolving litigation over EPA’s failure to promulgate attainment designations for the sulfur dioxide NAAQS under the Clean Air Act.
I would have thought that entry of the settlement would be fairly straightforward. EPA misses deadlines with some regularity. Persons sue over such failures with some regularity. … More
EPA Eliminates “But For” Causation From the Exceptional Events Rule: Tort Professors Everywhere Get Excited
On Monday, EPA promulgated amendments to its “Exceptional Events” Rule. The rule is important, particularly in the Western states, and most particularly in connection with EPA’s latest iteration of the ozone NAAQS. EPA’s most significant revision was to eliminate the requirement that state air agencies demonstrate that, “but for” the exceptional event, the state or relevant area would have complied with the applicable NAAQS. The change is important for two reasons. … More
The Clean Air Act’s good neighbor provision prohibits upwind states from emitting air pollutants in amounts that will “contribute significantly to nonattainment” of a national ambient air quality standard in a downwind state. On Wednesday, the D.C. Circuit Court of Appeals held that, while upwind states have to be good neighbors, EPA cannot force them to be extraordinarily super-special neighbors. Just good enough will have to do.… More
The D.C. Circuit Court of Appeals today rejected Kansas’s challenge to EPA’s disapproval of Kansas’s SIP revisions intended to comply with the Interstate Transport Rule. The Court found that EPA was not arbitrary or capricious in rejecting Kansas’s SIP, noting that:
The discussion of interstate transport in Kansas’s SIP was only one page long and failed to provide any analysis at all of the downwind effect of its in-state emissions.… More
Half a Loaf May Not Be Too Bad: The 9th Circuit Affirms Most of EPA’s Approval of the San Joaquin Valley SIP
Earlier this week, the 9th Circuit Court of Appeals granted part of a petition challenging EPA’s approval of California’s SIP for ozone and PM 2.5 in the San Joaquin Valley. While the trade press has been focusing on the partial reversal, I think that EPA won much more than it lost.
What did it lose? California’s plans for complying with the ozone and PM 2.5 NAAQS relied in part on emissions reductions to be attained as a result of California’s authority under the CAA to impose more stringent mobile source emissions standards than are applicable nationally. … More
Yesterday, EPA finally proposed a revised ambient air quality standard for ozone – except that the agency is still hedging its bets. The Clean Air Science Advisory Committee had previously supported a revised ozone NAAQS of 0.060 to 0.070 ppm. EPA has narrowed the range slightly, proposing a revised NAAQS of from 0.065 to 0.070 ppm, but still has not yet picked a number.… More
Transportation Projects Get A Lot Of Deference in Demonstrating Compliance With Air Quality Standards
In a decision late last month, the 9th Circuit Court of Appeals made clear just how much deference agencies can get under the Supreme Court decisions in Chevron and Auer. The question in NRDC v. USDOT was whether, in determining whether a project to connect the Ports of Los Angeles and Long Beach to I-405 was in conformity with the California SIP,… More
On Friday, EPA released its “Policy Assessment for the Review of the Ozone National Ambient Air Quality Standards.” EPA staff concluded:
that it is appropriate in this review to consider a revised primary O3 standard level within the range of 70 ppb to 60 ppb. A standard set within this range would result in important improvements in public protection, compared to the current standard,… More
Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding, the decision is clearly correct. Perhaps the law is an ass.
In 2008, Avenal Power submitted an application to EPA for a PSD permit to construct a new 600 MW natural gas-fired power plant in Avenal,… More
In two related decisions last week, the Supreme Judicial Court issued three important rulings, and handed the Brockton Power Company one major problem in its long-running effort to build a combined-cycle gas plant in Brockton.
First, in City of Brockton v. EFSB, the SJC rejected all of the challenges by the City of Brockton and certain citizens to the Energy Facilities Siting Board approval of the Brockton Power project.… More
83% of a Loaf Is Better Than None: The Supreme Court Affirms EPA’s Authority to Regulate “Anyway Sources”, But Rejects Regulation of Otherwise Exempt Sources
The Supreme Court today affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have authority to regulate GHG emissions from facilities not otherwise subject to PSD review or the Title V program.
To EPA and the court below, the main issue – EPA’s authority – was not difficult.… More
As we have noted previously, EPA has had difficulty in promulgating a revised National Ambient Air Quality Standard for ozone. Whenever the revised NAAQS is issued – and EPA is under court deadline to propose a draft by December 1, 2014 and a issue a final by October 1, 2015 – the actual standard that EPA is likely to issue is coming into focus.
Late last week,… More
The Wind Bloweth Where It Listeth — And the Supreme Court Says EPA Therefore Has Discretion in Regulating Wind-Borne Pollution
The Supreme Court today reversed the D.C. Circuit and affirmed EPA’s Transport Rule (known more formally as the Cross-State Air Pollution Rule). Whatever the hopes and dreams of the upwind states and the industry opponents, the decision does not surprise me. EPA pretty much did what it was told when the Bush era CAIR rule was struck down. Moreover, EPA crafted a rule that seems to me fully within its discretion under the Clean Air Act and which,… More
On Monday, EPA released its second external review draft of an updated Policy Assessment on the national ambient air quality standard for ozone. It also released updated draft risk and exposure assessments. To no one’s surprise, the new drafts confirm support for lowering the ozone NAAQS from 75 ppb to a range of 60 ppb to 70 ppb.
Why is this not a surprise? … More
What Do Midwestern States Have In Common With Groucho Marx? Ask Them Whether They Want to Be Part of the Ozone Transport Region
As the Supreme Court gets ready to consider the validity of EPA’s Cross-State Air Pollution Rule, some of the Northeastern and Mid-Atlantic states are taking another tack to address at least part of the air pollution transport issue. They have petitioned EPA under § 176A of the Clean Air Act to add Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia to the Ozone Transport Region established under § 184 of the CAA.… More
Mississippi v. EPA: Support of the Clean Air Science Advisory Committee is Not Necessary to Affirm EPA’s NAAQS
On Tuesday, in Mississippi v. EPA, the Court of Appeals for the D.C. Circuit affirmed EPA’s 2008 NAAQS for ozone of 0.075 ppm. However, it remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same 0.075 ppm level. With respect to the primary standard, the Court gave short shrift to industry and red-state challenges that the standard was too stringent. This is not surprising,… More
Section 126 of the Clean Air Act and Cooperative Federalism: EPA May Cooperate with the Downwind State Rather than the Upwind State
On Friday, in GenOn REMA v. EPA, the 3rd Circuit Court of Appeals ruled that, in response to a petition from a downwind state under § 126 of the Clean Air Act, EPA may issue a rule imposing emission limits on a source in the upwind state without waiting for the upwind state to complete its own SIP process, which would presumably result in appropriate controls to protect the downwind state. … More
In Sierra Club v. EPA, issued today, The Court of Appeals for the District of Columbia rejected EPA’s rules governing “significant impact levels” and “significant monitoring concentrations” for determining PSD permitting requirements for new sources of PM2.5. Both the SIL and SMC provisions provided important exemptions from the PSD permitting regime. The Court ruled that neither provision was justified given the inflexible language of the Clean Air Act.… More