Tag Archives: Clean Air Act

Opacity Still Matters: Court of Appeals Affirms EPA’s NSPS for Particulate Matter

Last week, in Utility Air Regulatory Group v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s 2012 New Source Performance Standards for particulate matter emissions from fossil-fuel-fired steam electric generating units.  The opinion is largely a plain vanilla administrative law decision, but does provide some useful guidance on the appeal of CAA regulations.  It is also a useful reminder of the extent of deference to EPA in an ordinary case.… More

NSR Emissions Projections — Finally, An Area Where It is the Regulated Entity Which Is Entitled to Deference

Last spring, the 6th Circuit Court of Appeals ruled that when power plant owners compare actual emissions to projected future actual emissions for the purpose of determining whether a project is subject to the Clean Air Act’s NSR provisions, EPA may bring an enforcement action if the operator does not “make projections according to the requirements for such projections contained in the regulations.”  At the same time, however,… More

EPA Finalizes Revisions to the Utility MACT Rule For New Plants

On Thursday, EPA finalized revisions to the Mercury and Air Toxics Standards, or MATS (also known as “Utility MACT”).  The most significant change was to revise the mercury emissions standard from 0.0002 pounds per gigawatt-hour to 0.003 pounds per gigawatt-hour.  The change was made in response to comments suggesting that the more stringent standard simply wasn’t attainable.  EPA notes that attainment of the 0.003 lb/GWh will still require installation of the same types of pollution control equipment.… More

EPA Loses — Unanimously — In Sackett: How Broadly Does It Sweep?

For once, speculation about oral argument proved solid. The Supreme Court’s unanimous ruling today in Sackett v. EPA means that EPA must allow judicial review of enforcement orders issued pursuant to its authority under the Clean Water Act. The question now is what the true scope of the decision will be. That question really has two parts.

The first is what will happen to CWA enforcement. On that score,… More

EPA Wants to Take More Than One Year to Decide on a Clean Air Act Permit? How Absurd!

The uncertain and often lengthy time to get permitting decisions is always near the top of the list of industry complaints. Section 165 of the Clean Air Act provides some relief by requiring certain permit decisions to be made within one year. Last week, in Avenal Power Center v. EPA, District Judge Richard Leon, in what may comfortably be described as a strongly-worded opinion, held that EPA may not circumvent the one-year limit on permit decisions by carving out from the one-year period the time spent by the Environmental Appeals Board reviewing EPA’s permit decision.… More

Just in Case You Thought EPA Could Go On Its Merry Way in the Absence of Climate Legislation

Earlier this week, I posted about the dire prospects for climate change legislation following the fall elections. The alternative to legislation has always been regulation under existing Clean Air Act authority, so it’s appropriate as a follow-up to briefly examine the pressures on EPA as it moves forward with its stationary source GHG regulations. Two headlines from the trade press today brought home just what a tightrope EPA is walking.… More

EPA Finalizes Reconsideration of Johnson Memo: Confirms No Stationary Source GHG Regulation Before January 2011

EPA has finally issued its formal reconsideration of the Johnson Memo. As EPA had telegraphed, it confirms that a pollutant is only subject to PSD permitting requirements when that pollutant is subject to “a final nationwide rule [that] requires actual control of emissions of the pollutant.”

As EPA had also already indicated, the reconsideration states that PSD permitting requirements are triggered, not when a rule is signed or even on the effective date of the rule,… More

EPA Might Take Another Step Towards Regulating Greenhouse Gases Under the Clean Air Act

According to an article by BNA published this morning, EPA may soon act to apply the prevention of significant deterioration (PSD) provisions of the Clean Air Act to facilities that emit more than 25,000 tons of carbon dioxide annually.  Presumably, EPA’s action is either an effort to exert leverage on Congress to pass pending climate change legislation or to ensure that GHG are regulated in the event that legislation doesn’t pass —… More

Today’s the Day: EPA Releases Endangerment Finding for Greenhouse Gases Under the Clean Air Act

This morning, EPA issued a proposed finding that greenhouse gasses contribute to air pollution and may endanger public health or welfare. The proposed finding comes almost exactly two years after the Supreme Court, in Massachusetts v. EPA, ordered the agency to examine whether emissions linked to climate change should be curbed under the Clean Air Act, and marks a major shift in the federal government’s approach to global warming.… More

Greenhouse Gas Endangerment Finding Out Soon: Will Regulations Be Far Behind?

Greenwire reported yesterday that EPA plans to issue its endangerment finding on emissions of greenhouses gases, in response to Massachusetts v. EPA, by the end of April. Greenwire also released EPA’s internal presentation regarding its recommendation to the Administrator.

Although EPA’s anticipated decision is not a surprise, it is still noteworthy. Among the highlights:

  • The finding will conclude that greenhouse gas emissions endanger public health (the proposed endangerment finding that the Bush administration EPA had prepared,…
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Yet One More Judicial Defeat for the Bush EPA; The D.C. Circuit Vacates Another Clean Air Act Rule

As the sun sets on the Bush administration, it is at least maintaining its seemingly unmatched record for turning the notion of judicial deference to administrative action on its head, as the D.C. Circuit has rejected yet one more EPA Clean Air Act rule. This time, the Court struck down EPA’s rule exempting startups, shutdowns, and malfunctions (SSM) from emissions standards under § 112 of the CAA.

As with some of EPA’s other judicial defeats,… More

Still No Quick Fix to the CAIR Rule

Since the Court of Appeals for the District of Columbia vacated EPA’s Clean Air Interstate Rule in its entirety, EPA and Congress have been working on a variety of fixes. As we recently noted, Congressional Democrats recently put together a plan to enact CAIR’s Phase I SO2 and NOx limits. Enacting those limits would result in emissions reductions of approximately 45% of SO2 and 50% for NOx.… More

EPA’s NSR Reforms: The Final Nail in the Coffin?

There was a time when EPA was almost uniformly successful in defending its regulations in the courts. EPA would note the deference provided to agency decision-making under Chevron U.S.A. v. NRDC, remind the court of its expertise in interpreting some very complicated statutes, and the case would essentially be over. Not any more.

In recent years, as the Bush administration has embarked on some quite ambitious regulatory reform efforts,… More