I’m not much for apocalyptic thinking. I don’t think it’s productive. I have to confess, though, that this story about the Great Salt Lake got me thinking about whether human nature is such that the apocalypse is not that far away. It makes compelling reading. And viewing – do check out the video of what used to be Owens Lake, which could be described as a cautionary tale for Salt Lake City,… More
Category Archives: NAAQS
Last week, the Clean Air Scientific Advisory Committee formally transmitted its recommendations to EPA Administrator Regan regarding the PM2.5 NAAQS. Consistent with trade press reporting over the past few months, the majority of CASAC members recommended that the PM2.5 NAAQS be set between 8-10 ug/m3. A minority recommended the range be set between 10-11 ug/m3. I’d be surprised if the revised NAAQS is set above 10 ug/3.
For me,… More
The Impact of Exposure to Leaded Gasoline Was Horrific: Will We Say the Same in 2050 About the Impact of PM2.5 Exposure?
An article in the Proceedings of the National Academy of Sciences (login required) has documented the devastating impact caused by the use of leaded gasoline. The study estimates that more than half of Americans alive in 2015 had been subject to unsafe blood lead levels as children. The study further estimates that the impact of these elevated blood levels was a net loss of 824,097,690 IQ points as of 2015. … More
The momentum continues to build for a more stringent National Ambient Air Quality Standard for PM2.5. In June, EPA announced it would revisit the Trump Administration’s decision to keep the PM2.5 NAAQS at 12 ug/m3. In early October, EPA staff released a supplement to its assessment of the PM2.5 NAAQS. That supplement also supported a more stringent standard.
Now, the Clean Air Science Advisory Committee is about to weigh in. … More
On Friday, EPA announced that it was reconsidering its 2020 decision to leave the National Ambient Air Quality Standards for ozone unchanged. The reconsideration will be based on the existing record. The notice does not identify any specific perceived flaws in the 2020 decision. However, EPA stated that it:
will reconsider the decision to retain the ozone NAAQS in a manner that adheres to rigorous standards of scientific integrity.… More
There’s No Doubt What EPA Staff Thinks Should Be the Result of EPA’s Reconsideration of the PM2.5 NAAQS
Late last week, EPA released an external review draft of the “Supplement to the 2019 Integrated Science Assessment for Particulate Matter.” For those of you who don’t recall, the original Integrated Science Assessment was the report by EPA scientists that very clearly called for a decrease in the National Ambient Air Quality Standard for PM2.5. It was criticized by the Chair of the Clean Air Act Science Advisory Committee and ignored by Administrator Wheeler,… More
Most people other than Andrew Wheeler and the Trump Administration Clean Air Science Advisory Committee know that exposure even to low levels of PM2.5 causes increased morbidity and mortality. And now comes evidence that exposure to PM2.5 may adversely impact cognitive capacity as well. If the evidence is correct, then the externalities created by activities that release PM2.5 are likely much more significant than we had realized,… More
EPA announced yesterday that it will “reconsider” the Trump EPA’s decision not to change the PM2.5 National Ambient Air Quality Standard. I’ve blogged numerous times about the growing body of evidence that exposure to concentrations of PM2.5 below the current NAAQS causes significant additional mortality and morbidity. The evidence is clear.
I certainly agree that climate change is an existential threat and that’s where our emphasis needs to be. … More
I’ve frequently discussed in recent years the mounting evidence for the need to lower the National Ambient Air Quality Standard for PM2.5. There is also substantial evidence that PM exposure is an environmental justice issue. In this context, electrification of our transportation system is seen as having a substantial co-benefit in the reduction of vehicle-related PM emissions, particularly in EJ communities.
Two recent stories both confirmed the validity of these issues and made manifest the complexity of the problems we are trying to solve. … More
The evidence of the harm resulting from PM2.5 exposures keeps rolling in. Earlier this month, Environmental Research published an article titled “Global mortality from outdoor fine particle pollution generated by fossil fuel combustion: Results from GEOS-Chem” (abstract available; full article requires purchase), which concluded that global annual mortality from PM2.5 exposure is roughly twice as high as previously estimated.
Last month, I posted that EPA’s decision to retain the current PM2.5 NAAQS of 12 ug/m3 was the single worst decision by Trump’s EPA. Since then, I have not received any comments suggesting that my ranking was incorrect. In case anyone was still in doubt, Environmental Research recently released an on-line Pre-proof of A National Difference in Differences Analysis of the Effect of PM2.5 on Annual Death Rates. … More
Yesterday, EPA formalized its decision to leave the ozone NAAQS unchanged, at 70 ppb. I don’t think that this decision is in the same category of egregiousness as EPA’s recent decision not to reduce the PM2.5 NAAQS. After all, only one decision can be the single worst environmental policy of an entire administration.
I’m not that close to the science on the ozone NAAQS,… More
EPA Finalizes Decision to Retain the Existing PM2.5 NAAQS — Single Worst Environmental Decision of the Trump Administration?
Yesterday, EPA finalized its decision to retain the existing PM2.5 NAAQS of 12 ug/m3, rejecting substantial scientific evidence that PM2.5 causes significant harm at concentrations below 12 ug/m3. In fact, as noted in one of my prior posts on this subject, an article in the New England Journal of Medicine estimated that exposure to PM2.5 at concentrations below 12 ug/m3 causes more than 10,000 deaths annually. … More
Last week, the 3rd Circuit Court of Appeals vacated EPA’s approval of Pennsylvania’s SIP for attaining the 2008 NAAQS for NOx. Specifically, the Court found that EPA’s approval was arbitrary and capricious with respect to three separate, but related, provisions of the SIP. The flawed provisions were:
- The NOx standard for power plants utilizing selective catalytic reduction was set at 0.12 pounds/MMBtu.…
On Tuesday, Judge John Koeltl ordered EPA to issue a final rule addressing its obligations under the Good Neighbor provisions of the Clean Air Act by no later than March 15, 2021. Two aspects of the decision are worth note.
The big issue in the case, once the Judge disposed of EPA’s jurisdictional arguments, was whether it is impossible for EPA to issue a final rule by the plaintiffs’ suggested date. … More
What is the Burden on States Petitioning EPA Under the Good Neighbor Provisions of the Clean Air Act?
Yesterday, the D.C.. Circuit Court of Appeals granted New York’s petition appealing EPA’s rejection of New York’s request under Section 126 of the Clean Air Act to require emissions reductions from upwind states alleged to be contributing to New York’s noncompliance with the ozone NAAQS. The Court found that:
The EPA offered insufficient reasoning for the convoluted and seemingly unworkable showing it demanded of New York’s petition.… More
There have been numerous studies that support a decrease in the current PM2.5 annual standard of 12 ug/m3. EPA has nonetheless proposed to retain the current standard on the basis that there is too much uncertainty regarding whether those studies provide a basis for concluding that PM2.5 concentrations below the standard cause increased mortality. As I have previously noted, the statutory provision requires that NAAQS be set with an “adequate margin of safety.” That would seem to require EPA to resolve such uncertainty in favor of a more stringent standard.… More
Particulate Matter Experts Still Think that the PM2.5 NAAQS Should Be Lowered. Will The Courts Defer to Them Or to EPA?
Last week, the New England Journal of Medicine published The Need for a Tighter Particulate-Matter Air-Quality Standard, written by the Independent Particulate Matter Review Panel. For those who don’t remember, the Review Panel used to be a sub-committee of EPA’s Clean Air Science Advisory Committee, until EPA Administrator Wheeler decided that CASAC did not need the specific advice that the Review Panel had to offer.… More
Last week, EPA formally revised the cost-benefit analysis for its rule limiting the emissions of hazardous air pollutants from coal-fired power plants. The rule jettisons consideration of so-called “co-benefits,” in this case, the benefits from the reduction in emissions of PM2.5 that result from limits on mercury emissions. The very idea of excluding consideration of co-benefits is just plain incoherent.
I’ve spent my career defending cost-benefit analysis to many of my environmentalist friends. … More
After more than three years of ignoring science whenever it does not support this Administration’s preferred outcomes, the issue of the future of science in environmental regulation has now been well and truly joined. Yesterday, Administrator Wheeler, disagreeing with the recommendation of EPA’s own staff, announced that EPA is proposing to retain the current National Ambient Air Quality Standard for PM2.5 of 12 ug/m3, notwithstanding substantial evidence that PM2.5 poses significant risks even below 10 ug/m3. … More
Last week, I discussed the Administration’s guidance concerning the exercise of its enforcement discretion during the COVID-19 pandemic. Now comes evidence that the guidance may actually be self-defeating. While the administration is – understandably – trying to cut regulated industries some slack while they are trying to deal with COVID-19, it turns out that exposure to PM2.5 has a significant impact on the COVID-19 death rate.… More
Evidence That Low Exposures to Particulate Matter Pose Health Risks Continues to Accumulate — Will Administrator Wheeler Listen?
EPA’s Office of Air Quality Planning and Standards has issued its final “Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter.” The Policy Assessment comes with the standard disclaimer that its “findings and conclusions are those of the authors and do not necessarily reflect the views of EPA.” Sadly, truer words were never spoken.
Those following this issue know that,… More
Last month, I noted that EPA’s Office of Air Quality Planning and Standards had released a draft reassessment of the particulate matter NAAQS. In a bold moment of speculation, I indicated that it would be difficult for EPA to avoid lowering the PM2.5 NAAQS to between 8.0 and 10.0 micrograms/cubic meter. Following issuance of the draft, and in order to ensure that EPA does not ignore the emerging scientific consensus,… More
On Monday, District Judge Rodney Sippel ordered sweeping injunctive relief against Ameren Missouri, intended to remedy violations of PSD requirements he had previously identified resulting from upgrades to the Ameren Missouri Rush Island generating plant.
Notwithstanding the lengthy opinion, most of the Court’s findings are fairly plain vanilla. Basically, Judge Sippel ordered Ameren Missouri to submit a PSD permit application and he ruled that BACT for control of SO2 emissions at Rush Island required installation of wet flue gas desulfurization equipment.… More
Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions. The Court concluded that, where downwind states face significant consequences in not meeting statutory deadlines to attain National Ambient Air Quality Standards, but don’t control their own fate because upwind states are contributing significantly to the downwind states’ nonattainment,… More
EPA’s Office of Air Quality Planning and Standards has released a draft of its reassessment of the adequacy of the current national ambient air quality standard for particulate matter. Here’s the primary takeaway concerning PM2.5:
The risk assessment estimates that the current primary PM2.5 standards could allow a substantial number of PM2.5-associated deaths in the U.S.
When taken together, we reach the preliminary conclusion that the available scientific evidence,… More
The D.C. Circuit today largely upheld EPA’s 2015 revisions to the National Ambient Air Quality Standard for ozone. I’m not much of a prognosticator, but I pretty much called this one years ago. The Court was never going to require EPA to consider costs in setting the NAAQS – not a surprise, given that the Supreme Court concluded in Whitman v.… More
EPA’s Latest Particulate Review Shows Impacts Below the Current NAAQS. How Will Trump Avoid Doing Something About It?
Last week, EPA posted its draft Integrated Science Assessment for Particulate Matter. It’s the foundational document for EPA’s periodic review of its National Ambient Air Quality Standard for PM. The current standard for PM2.5, promulgated in 2012, is 12 ug/m3.
Section 109 of the Clean Air Act requires the Administrator to set the NAAQS “requisite to protect the public health” with “an adequate margin of safety.”
The new ISA states that:
Evidence from U.S.… More
BLM Loses Another One: Resource Management Plans for Coal Leasing Areas Are Sent Back to the Drawing Board
Late last month, Judge Brian Morris granted summary judgment to plaintiffs on three claims alleging that the environmental impact analysis supported BLM’s Resource Management Plans for managing coal leases in the Powder River Basis were flawed. It’s a very thoughtful decision. Judge Morris rejected three of plaintiffs’ claims and did not provide the injunctive relief that they sought. Nonetheless, it’s an important setback for BLM and further evidence that courts are going to require more of BLM in assessing climate impacts associated with energy resource development.… More
Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards. My primary take-away? The structure of the Clean Air Act is so dense and so complicated that it gives me a headache, and I do like to think I’m something of an expert. Those of us who believe in government regulation need to be honest and admit that there’s a reason why some people become Libertarians. … More
I’ve noted numerous times that the NSR program is incomprehensible gibberish. These are scientific and objective comments. The most recent example of this is the DTE litigation, in which a one-judge minority somehow ended up writing the opinion of the 6th Circuit Court of Appeals, allowing EPA enforcement claims against DTE Energy to continue.
The question in DTE Energy is whether EPA can second-guess a generator’s pre-construction prediction of future actual emissions and bring a claim for an NSR violation – even where post-project actual emissions did not show a significant net increase in emissions. … More
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
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