Earlier this week, the 10th Circuit Court of Appeals vacated EPA’s disapproval of Wyoming’s regional haze plan for the PacifiCorp’s Wyodak power plant. The basis for the disapproval was an issue near and dear to my heart. In rejecting Wyoming’s SIP, EPA repeatedly pointed to Wyoming’s failure to comply with EPA’s guidelines for determining Best Available Retrofit Technology, even though the guidelines were not enforceable regulations. … More
Tag Archives: SIP
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
Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate. I think that the result is both correct and unsurprising.
However, one part of the opinion – a recitation of black-letter law – caught my eye. In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.” No surprise there. … More
Earlier this week, the 9th Circuit denied Arizona’s challenge to EPA’s decision to reject Arizona’s SIP addressing regional haze requirements and instead promulgate its own federal implementation plan. The decision has a number of interesting elements and is well worth a read, but it’s most notable for its treatment of the deference issue.
We all know that courts defer to reasonable agency decision-making. … More
Record Review Means That EPA Must Refer To the Record: The Third Circuit Remands EPA’s Approval of the Pennsylvania Regional Haze SIP
On Tuesday, the 3rd Circuit Court of Appeals remanded EPA’s approval of Pennsylvania’s regional haze SIP. The decision is a must-read for practitioners. It decides some important issues and provides important reminders for EPA and the states on how to build a record and how to justify decisions – or not! – based on that record.
Although seen as a defeat for Pennsylvania and the large sources subject to the regional haze rule,… More
EPA Proposes to Eliminate Affirmative Defenses for Excess Emissions During Startups, Shutdowns, or Malfunctions — Get Ready for Some Citizen Suits
This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at the time, that decision clearly had implications beyond the cement kiln rule.
Those implications were made more concrete this week when EPA issued a supplemental notice of proposed rulemaking in which it proposed to rescind its policy allowing affirmative defenses to penalties for excess emissions during startup,… More
We Still Don’t Need No Stinkin Cooperative Federalism: The D.C. Circuit Court of Appeals Holds that GHG Sources Require PSD Permits Even Absent a State Implementation Plan
Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my point, by affirming EPA’s assertion of PSD permitting jurisdiction in Texas and Wyoming in the face of those states’ failure to prepare state implementation plans to incorporate permitting programs to implement EPA’s greenhouse gas rules under the PSD program.… More
As I noted on Friday, EPA has proposed to revise the NAAQS for ozone to a range of from 0.060-0.070 ppm, a reduction from the 0.075 ppm standard promulgated in 2008 by the Bush administration. EPA’s analysis of the available date indicates that 650 counties – out of 675 counties which have ozone monitors – would be in violation of a 0.060 ppm standard. For those counting, that’s more than 96% of all counties in nonattainment. Even if the standard were set at 0.070 ppm,… More
Last Friday, in NRDC v. EPA, the Court of Appeals for the D.C. Circuit struck down parts of EPA’s Phase 2 rule for achieving compliance with the ozone NAAQS. The most important part of the ruling was the Court’s conclusion that EPA could not rely on compliance with the NOx SIP Call to satisfy the requirement that sources in an ozone nonattainment area demonstrate achievement of reasonably available control technology,… More