Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

Last week, I posted about improvements in air quality since 1990. It’s a good thing air quality is improving, because, at the same time, the science keeps suggesting that ever lower pollutant levels pose risks to public health. The latest news was EPA’s draft review of the appropriate level at which to set the National Ambient Air Quality Standard for particulate matter.

EPA most recently revised the PM standard in 2006, setting it at 15 ug/m³, notwithstanding the staff recommendation to set the standard at between 13 ug/m³ and 14 ug/m³. As I have discussed, EPA’s decision was struck down by the D.C. Circuit Court of Appeals, because EPA could not justify its departure from the scientific recommendations it has received.

Now, the draft Policy Assessment has concluded that the 15 ug/m³ is not sufficiently stringent. The draft suggested two ranges for potential revised standards:

Annual standard of between 12 and 13 ug/m³; 24-hour standard of 30 to 35 ug/m³

Annual standard of between 10 and 11 ug/m³; 24-hour standard of 25 to 30 ug/m³

A more stringent PM standard is going to have significant implications. These include:

1.         Strengthening the logic for three pollutant legislation. First, the health effects described in the Policy Assessment suggest the need for such legislation, because the targets of three pollutant legislation are among the big contributors to PM emissions. Second, in order to meet a more stringent standard, reductions of the sort contemplated in three pollutant legislation are going to be necessary.

2.         It may be simply a restatement of the first point, but the pressure on old fossil fuel plants, particularly old coal plants, is only going to increase as a result of the Policy Assessment. In this context, it is noteworthy that, at a seminar on Friday, Gina McCarthy, EPA’s Assistant Administrator for Air and Radiation, in discussing the number of rules EPA is obligated to issue in the next 12-18 months, indicated her sense that the biggest impact on GHG emissions might not result from EPA’s tailoring rule and direct regulation of GHGs, but would instead result from the secondary effect from the full panoply of traditional pollutant regulations on EPA’s docket. In other words, once EPA is done with new CAIR regulations, MACT rules, and SIP revisions following a more stringent PM standard, the economics of old coal plants will be such as to force switching to more climate-friendly energy sources, even aside from direct GHG regulation.

I think that Gina is probably right, and I’m particularly appreciative that she is able to take the long view. In the short run, coal remains cheap. Moreover, traditional control technologies for SO₂ and NO_x require energy, increase station service, and thus actually do not help with GHG reductions. Nonetheless, if one does take the long view, more stringent traditional regulation, including that resulting from more stringent PM standards, will increase the cost of fossil fuels and help drive the economy towards energy sources that are more climate friendly.

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We have previously posted about EPA’s efforts to roll back regulatory changes made by the Bush Administration, particularly with respect to the NSR program. There is no question that the roll-back continues. This week, EPA announced it would review three separate NSR rules promulgated by the Bush administration. These include:

The “reasonable possibility” rule, which identified when major sources must keep records even if a contemplated change is not expected to trigger NSR review

The fugitive emissions rule, which limited by source category when fugitive emissions must be taken into account in determining NSR applicability

The PM_2.5 rule, which included provisions regarding submittal of state implementation plans, or SIPs, for PM _2.5 compliance. One particular issue of concern is the provision which deferred until 2011 the date by when states must account for emissions of gases, emitted from coal-fired power plants, which may condense to form PM _2.5.

In a narrow way, EPA’s decision to revisit these rules will likely lead to lower emissions of air pollutants subject to NSR in some cases.  At a broader level, these reviews ignore the fundamental problems with the NSR program and whether the NSR program is a dinosaur of command and control regulation that is not a cost-effective of achieving emissions reductions.

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The batting average of the Bush administration EPA in appeals of its regulatory proposals may now have dropped below the proverbial Mendoza line. This week, the Court of Appeals for the District of Columbia remanded a substantial part of EPA’s particulate rule. That the Bush administration could achieve results where the Mendoza line is even a close metaphor is a testament to just how low its stock has fallen in the courts.

The case itself is important for a number of reasons, but is too lengthy for detailed analysis here. Highlights include:

• First, the basic holding: the court remanded EPA’s primary annual standard for PM_2.5, because EPA did not justify that the 15 ug/m³ standard was sufficient to protect public health with an adequate margin of safety. Second, the court also remanded EPA’s determination of the secondary, public welfare, standard for PM_2.5.
• The court gave great weight to the role of the Clean Air Science Advisory Committee (CASAC) and staff recommendations in the regulatory process. After this decision, EPA is going to think twice about choosing a regulatory course difference than that recommended by CASAC and staff. On balance, I think that this is a bad thing and more evidence of the collateral damage from the extreme positions taken by the Bush administration. After all, while the Clean Air Act sets some boundaries, these are ultimately policy decisions that should be made by the President and his or her chosen staff, not by a committee no one’s heard of or low-level staff.
• Unlike the chaos created when the court vacated the CAIR regulations, the court appears to have learned its lesson. This time around, the court remanded the rule, but left the standard in place for now.
• The court’s decision to remand the public welfare standard will have implications for current efforts to implement the its Regional Haze Rule. The extent to which this decision throws Haze Rule implementation back to the drawing board may not be known for some time.

How many more cases can the Bush administration lose after it’s already out of office? At least one. Greenwire reports today about speculation that this decision means that the EPA rules regarding the nitrogen oxide NAAQS may also be in trouble.

The interesting question in all this is the extent to which the abysmal record of the Bush EPA in defending its decisions in the courts will damage EPA’s credibility and thus result in a long-term weakening of the deference given EPA by the courts. At this point, my assumption is that, in the long run, these cases will be seen as an aberration and courts will resume their prior practice of granting EPA substantial deference. Of course, whether that is a good thing or not is a separate question.

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