Category Archives: NAAQS

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, DOT reasonably performed a qualitative analysis of PM concentrations based on a receptor five miles from the project area.

The regulations require the proponent to demonstrate that the project will not “increase the frequency or… More

How Low Will They Go? A Lower Ozone NAAQS Begins to Have An Air of Inevitability

On Friday, EPA released its “Policy Assessment for the Review of the Ozone Ozone_Molecule_FormulaNational 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, and could reasonably be judged to provide an appropriate degree of public health protection.

As staff noted, the Clean Air Science Advisory Committee made the same recommendation…. More

You Can’t Estop the Government — Even When It Wants to Be Estopped

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, California. Although section 165(c) of the Clean Air Act requires EPA to act on such applications within one year, EPA failed to do so.

Subsequently, and before… More

The SJC Gives “Great Deference” to the Energy Facilities Siting Board. That’s An Understatement

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.

In a holding that will cheer environmental advocates but strike fear into developers of all stripes, the SJC found that the EFSB’s application of the Commonwealth’s Environmental Justice policy is… 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. PSD applies to “any regulated air pollutant.” Once EPA issued the tailpipe rule, GHGs became a regulated pollutant. Thus, EPA had not just discretion to regulate… More

Coming To An Air Quality District Near You: A More Stringent Ozone NAAQS

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, EPA’s Clean Air Science Advisory Committee released a draft letter to EPA providing its comments on review of EPA’s draft Policy Assessment of the ozone NAAQS. The contents of the letter… 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, in fact, took cost into account as much as allowed under the CAA.

There were two issues on appeal…. More

EPA Inches Closer to a More Stringent Ozone Standard: When Will It Actually See the Light of Day?

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?  Because, as I noted some time ago, the prior draft policy assessment also supported an NAAQS in the range of 60 ppb to 70 ppb.  Moreover, the Clean Air Science Advisory Committee weighed… 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.

As the Technical Support Document submitted with the Petition indicates, the OTR states (minus their members with Republican governors) have largely… 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, since the Clean Air Science Advisory Committee had recommended a range of between 0.060 and 0.070 ppm.

The interesting part of the decision is the Court’s explanation of why it rejected… 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.  This firm has represented GenOn (though not in this case), so I’m not going to get into the merits.  However, if the decision stands, it is important and… More

EPA Loses Another PSD Case: The Clean Air Act is “Extraordinarily Rigid”

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.

The SIL is “the level of ambient impact below which the EPA considers a source to have an insignificant effect on ambient air quality.”  However, it is possible for a source… More