Download 1 Clean Air Act Basics Farber, Freeman and Carlson`s Cases

Clean Air Act Basics
Farber, Freeman and Carlson's
Cases and Materials on Environmental Law, 8th ed.
American Casebook Series
West Law School 2009
PRLS 670
ENVIRONMENTAL LAW
Webpage:
classweb.gmu.edu/jkozlows/670.htm
Lead Industries Association, Inc.
v.
EPA
647 F.2d 1130
(D.C.Cir. 1980)
National Ambient Air Quality Standards (NAAQS) for atmospheric lead
petition for review
whether EPA administrator acted within scope of statutory authority
whether evidence in rulemaking supported NAAQS for lead
Admin set 1.5, same as proposed standard,
for adequate margin for safety
Alleged Admin exceeded authority
by promulgating air quality standards for lead
more stringent than necessary to protect the public heath
because it was designed to protect public against sub clinical effects, which are not
harmful to health
allege Congress authorized EPA air quality standards protect public against health
effects known to be clearly harmful
Allege Congress limited EPA authority
due to concern excessively stringent air quality standards would cause massive
economic dislocation
Allege EPA erred
in failing to consider
economic and technological feasibility
in setting air quality standards for lead.
1 “adequate margin of safety”
to consider economic impact
on industry
and technological feasibility of compliance by emissions sources.
Ct: argument totally without merit
nothing in language of Act or legislative history
to allow EPA to consider economic and technological feasibility in setting “adequate
margin of safety”
On the contrary, statute and legislative history make it clear
that economic considerations
play no part
in setting ambient air quality standards.
Congress makes it clear
when intent for EPA to be concerned with economic & technological feasibility
Sec. 111 of Act:
new stationary sources
based on best available control technology
consider econ. & techno feasibility in setting standards.
Sec.109
only speaks to
protecting public health
in setting
ambient air quality standards
Legislative history
deliberate decision by Congress
to subordinate
econ and techno feasbility concerns to achievment of health goals.
Court:
adequate support
for EPA’s conclusions
about health effects
of lead exposure
Criteria Document
under statutory scheme
for each pollutant
2 provide scientific basis
for promulgation
of air quality standards
for pollutant
Lead document
product of rigorous scientific and public review
accurately reflected latest scientific knowledge
re identifiable effects of lead exposure on public health
Disagreement among experts inevitable for issues re
“very frontiers of scientific knowledge”
Such disagreement does not preclude finding that Admin decisions are adequately
supported by record
Allege EPA mutiple margins of safety, not singular statutory margin of safety,
includes non- air blood lead level sources
results in standard more stringent than necessary to protect public health
Court: agrees with EPA,
nothing in statutory scheme
or legislative history
to require single “margin of safety”
at end of analysis.
Single “margin of safety”
just one approach considered,
but rejected
because of multiple sources
of lead exposure.
Choice of possible approaches
is a policy choice
of type Congress specifically left
to EPA Admin judgment
In rulemaking proceeding
Admin complied with
substantive and procedural requirements of Act
decisions are both adequately explained and amply supported by evidence on record.
Regs under review are affirmed.
Air Pollution
(continued)
3 Basics of the Clean Air Act
Whitman
v.
American Trucking Assn. Inc.
531 U.S. 457 (2001)
Clean Air Act (CAA) Sec. 109(a)
EPA Admin to promulgate NAAQS for each pollutant for which “air quality critera” issued
under sec. 108
Once NAAQS promulgated
Admin must review standard (and criteria for standard) at 5 yr intervals
& make such revisions as may be appropriate CAA 109(d)(1)
42 USC 7409(d)(1)
Economic considerations may play no part in the promulgation of ambient air quality
standards under CAA 109 (Lead Industries v. EPA)
CAA 109 (b)(1)
EPA to set primary ambient air quality standards, attainment & maintenance,
requisite to protect the public health with an “adequate margin of safety”
Fairly clear statutory text
does not permit EPA to consider costs in setting standards
Based on health effects info in criteria documents
identify max. airborne concentration public health can tolerate and reduce concentration
to provide “adequate margin of safety” and set standard at that level
Costs of achieving standard
not part of initial calculation
Meaning of “public health” within 109
ordinary meaning – health of the community OR secondary meaning, means of conserving community public health by preventive medicine, organized care
109 context of statute secondary meaning “makes no sense”
Congress could not intent EPA to set NAAQS at level requisite to protect community
public health within context of art & science as means of preserving health by
prevention & care system
Health of the public is primary definition, but Assn argues air pollution just one of many
factors affecting public health –
4 economic costs of stringent standards might produce health losses to offset health
gains
by industry shutdowns impoverishing workers & consumers dependent on those
industries
110(f) CAA permitted Admin to waive compliance deadline for stationary sources,
if sufficient control measures were simply unavailable & continued operation of such
sources is essential to the public health or welfare
Other provisions permit or require economic costs to be taken into account in
implementing air quality standards.
We therefore refuse to find ambiguous sections of CAA
as authorization to consider costs that is expressly granted elsewhere in Act
Congress does not alter fundamental details of a regulatory scheme in vague terms or
ancillary provisions
ergo must show CAA textual commitment of EPA authority to consider costs
Allege 109 “adequate margin” and “requisite” leave room to pad health effects with cost
concerns.
Court: implausible, through modest words, Congress would give EPA power
to determine whether implementation costs should moderate national air quality
standards.
Allege Admin judgment what is requisite to protect public health
need not be based solely on 108 criteria documents
Allgege effects on public health from pollutant in ambient air not necessarily limited to
those effects –
to include cost of implementation in developing and applying the criteria.
Costs indirectly related to public health & potential for cancelling conclusions drawn
from direct health effects –
would surely have been expressed in 108 & 109 if Congress intended costs to be
considered.
CAA provisions that do require cost data to be generated,
e.g., Admin issues to States with criteria info on air pollution control techniques to
include cost data re installation & operation
Cost provisions enable States as primary implementers of NAAQS
to assist in carrying out CAA statutory role of States –
deciding what emissions reductions from what sources
5 Impossible for States to intelligently do so without considering which abatements
technologies are most efficient, and most econcomically feasible.
Ergo, claims of economic & technological infeasability
brought before State agency formulating SIP,
not EPA.
Federal clean air legislation directs EPA to develop and transmit implementation data,
including cost data, to the States.
Congress chose federal research program to assist States in choosing means to
implement NAAQs,
has NO bearing on whether costs considerations to be taken into account in formulating
standards.
Interpreting 109 (b) text in statutory & historical context, with appreciaiton for importance
of CAA as a whole,
unambiguously bars cost considerations from NAAQS-setting process.
Statutory Discretion in Clean Air Act
Massachusetts v. EPA
extent of discretion accorded to EPA
in choosing whether to set mobile sources standards for greenhouse gas emissions
CAA sec. 202(a)(1)
The EPA Administrator shall by regulation prescribe (and from time to time revise) in
accordance with the provisions of this section,
standards applicable to the emission of any air pollutant from any class or classes of
new motor vehicles or new motor vehicle engines…
. which in his judgment cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public health or welfare
The Act defines "air pollutant" to include "any air pollution agent or combination of such
agents,
including any physical, chemical, biological, radioactive . . . substance or matter which is
emitted into or otherwise enters the ambient air."
§ 7602(g).
"Welfare" is also defined broadly: among other things,
it includes "effects on . . . weather . . . and climate." § 7602(h).
70s fed govt serious attention to possibility human CO2 emissions could provoke
climate change –
wait & see policy would mean waiting until too late
6 87 Global Climate Protection Act –
direct EPA to propose national policy on global climate change –
ongoing pollution & deforestation contributing to irreversible process
Kyoto protocol mandatory targets for industrialized nations to reduce greenhouse gas
emissions.
Targets did not apply to developing heavy polluting nations, China, India
– US Senate resolution not to enter protocol
Issue: whether 201(a)(1) authorizes EPA to regulate greenhouse gas emissions from
new motor vehicles
if EPA forms “judgment” that such emissions contribute to climate change.
EPA: Since CO2 is not an “air pollutant” within 202(a)(1)
Congress did not intend it to regulate substances that contributes to climate change
Court 5-4: statutory text unambiguous,
forecloses EPA’s reading of Clean Air Act,
sweeping definition of “air pollutant”
includes repeated reference to “any”
CO2 is “physical and chemical substance emitted into ambient air.
EPA: post enactment congressional actions (re Kyoto)
tantamount to command to refrain from regulating greenhouse gas emissions.
EPA never identifies any action remotely suggesting Congress meant to
curtail EPA power to treat greenhouse gas emissions as pollutants.
Congress eschewed enacting binding emission limitations
choosing to promote interagency collaboration and research to better understand
climate change
With EPA’s pre existing mandate to regulate “any air pollutant” that may endanger
public welfare –
collaboration & research does not conflict with regulatory effort
EPA has jurisdiction to regulate emissions & delay any action
to permit development and application of requisite technology,
giving appropriate consideration to the cost of compliance
7 EPA had never disavowed authority to regulate greenhouse gases prior to this litigation
no compelling reason to read ambiguity into a clear statute
EPA: cannot regulate CO2 emissions from motor vehicles,
would require tightening mileage standards,
authority to do so is Dept of Transportation (DOT)
Court: DOT mileage standard authority
not a license for EPA to shirk its environmental responsibilities.
EPA charged with protecting public health and welfare,
independent statutory obligation to DOT’s energy efficiency
Intent of 202(a)(1) could not anticipate global warming
understood without regulatory flexibility,
changing circumstances & scientific developments would soon render Clean Air Act
obsolete
Court : hold EPA has authority to regulate the emission of greenhouse gases from new
motor vehicles
Greenhouse gases fit welll within CAA’s “capacious” definition of “air pollutant”
EPA: despite authority to regulate greenhouse gases,
unwise to do so at this time
Court: EPA reasoning divorced from statutory text
EPA’s exercise of authority conditioned on “judgment.”
Judgment must relate to whether air pollutant causes or contributes to air pollution
reasonably anticipated to endanger public health or welfare
“Judgment” is not license for EPA to ignore statutory text
exercise of agency discretion defined by statutory limits
If EPA makes finding of “endangerment,”
CAA requires EPA to regulate emissions of deleterious pollutant from new motor
vehicles
EPA has significant latitude in manner, timing, & coordination of its regs
But, once EPA has responded to rulemaking petition,
reasons for action or inaction must conform to authorizing statute
8 Clear terms of CAA, EPA can avoid further action
if it determines greenhouse gases do not contribute to climate change
Or provide reasonable explanation why it cannot or will not exercise discretion to
determine if they do
EPA can not avoid its statutory obligation
by noting the uncertainty surrounding various features of climate change
and concluding that it , therefore, would be better not to regulate at this time.
Statutory question
whether sufficient information exists to make an endangerment finding.
EPA has offered no reasoned explanation for its refusal to decide
whether greenhouse gases cause or contribute to climate change.
i.e., arbitrary & caprious, abuse of discretion, not in accordance with law under APA
On remand, EPA must ground its reasons for action or inaction in the statute.
State Implementation Plans (SIPs)
Union Electric Co.
v.
EPA
U.S. Supreme Court 1976
The Attainment Principle
Whether operator of regulated emission source
can raise economic or technological infeasibility
in petition for review of EPA-approved state plan
Missouri SIP: coal fired electric generating plants
subject to sulphur dioxide restrictions
Union seeking extension of variances from State
EPA notified Union plants
violated emission limits in Missouri SIP
Act allowed petition for review of SIP after 30 day appeal period
for newly discovered or available information
9 Union: various economic & technological difficulties arose after appeal period
econ & tech difficulties made compliance with SIP emission limits impossible
EPA: no power whatsoever to reject SIP because economically or technologically
infeasible
Court accords great deference to EPA's construction of Clean Air Act
Act & legis history: EPA's consideration of SIP
Congress did not intend consideration of economic or technological infeasibility
'70 Act States to have primary responsibility in formulating pollution control strategies
States subject to strict minimum compliance requirements
"technology forcing character"
110(a)(2)
Criteria for EPA approval of SIP
if SIP meets criteria
SIP adopted after reasonable notice & hearing
EPA SHALL approve proposed SIP
EPA is not to consider factors other than those specified in 110(a)(2)
none of factors appears to permit consideration of technological or economic
infeasibility
Legis history: technology forcing necessary in framing & attaining air quality standards
sufficient to protect the public health (primary standards)
Senate Committee: health of people more important
than question whether early achievement air quality standards technologically feasible
existing source either meet legal standard or close down
Primary standards to be met in less than 3 years
as expeditiously as possible
rejected House standard of "reasonableness"
States could not malinger until deadline
Union: when SIP proceeds more rapidly than economics & available technology appear
to allow
SIP must be rejected as not "practicable“
110(a)(2)(B) provides no basis for EPA to object on basis of infeasibility
to State's determination to force technology to attain air quality beyond minimum
requirements of Act
Act allows claims of economic or technological infeasibility where such claims
10 will not substantially interfere with primary congressional purpose
prompt attainment of national air quality standards
State may select whatever mix of control devices it desires
so long as national standards are met
industries may bring economic & technological considerations
before State in the development of SIP
EPA implicated in any postponement procedure
if SIP can not meet national standards
otherwise, State virtually absolute power in allocating emission limitations
EPA may issue compliance order per 113(a)(4)
EPA can consider relevant claims of technological or economic infeasibility
Train
v.
Natural Resources Defense Council, INC.
U.S. Supreme Court, 1975
Whether EPA required to disapprove portion of Georgia SIP
SIP provided for immediate implementation of categorical emission limits
variance procedure for particular sources to obtain individually tailored relief from
general requirements
Whether variances treated as SIP revisions or postponements
whether Congress intended States to retain any significant degree of control of manner
to attain national standards
once SIP is approved
EPA responsible for setting national ambient air standards
Act relegates EPA to secondary role
in determining & enforcing specific source-by-source emission limitations to meet
national standards
110(a)(2) EPA REQUIRED to approve SIP
which provides timely attainment & maintenance of national standards
EPA no authority to question wisdom of State's choices of emission limits
if part of SIP which satisfies national standards under Act
EPA may devise & promulgate specific SIP of its own
only if State fails to submit SIP which satisfies standards of 110(a)(2)
11 Whether States have such wide latitude in revision of SIP
once the initial SIP is approved
Sec 110(a) REQUIRES EPA approval of SIP revision
if EPA determines revision meets requirements of 110(a)(2)
applies to ANY revision,
subject only to general requirements applicable to original SIP
Revision section is State mechanism to obtain EPA approval of developing policy
choices
as to most practicable & desirable methods of restricting total emissions
to level consistent with national ambient air standards
110(f) is safety valve for EPA to provide exceptions to national standards
under certain carefully specified circumstances
Consistent with Congress declaration
"Each State shall have primary responsibility for assuring air quality within its
boundaries 107(a)
States considerable latitude
in determining specifically how standards would be met
State discretion includes continuing authority
to revise choices about mix of emission limitations
Train & Union Electric: illustrate "Attainment Principle"
EPA must approve any SIP
that will attain national air quality standards
EPA may not reject SIP because EPA thinks too stringent to be feasible
OR, less stringent than EPA thinks feasible, or than a previous SIP
As long as National Standards
are Met
State may use any mix of controls it wishes
no matter how lax or how strict
Statutory Discretion
Citizens Against the Refinery’s Effects
12 v.
EPA
643 F.2d 183 (4th Cir. 1981)
CARE appeals EPA final rule approving Va SIP
Va hgwy dept decrease asphalt usage, decreasing hydrocarbon pollution,
to offset expected pollution from proposed refinery
CAA est. NAAQs for 5 major pollutants
EPA has divided each state into Air Quality Control Regions (AQCR),
monitors each region to assure national standard for each pollutant is met 42 USC 7407
Where standard not attained for certain pollutant, state must develop SIP designed to
bring area into attainment within a certain period
42 USC 7410
No new source of that pollutant may be constructed until standard attained
40 CFR 51.18 (1073)
CAA created no-growth environment in non attainment areas
EPA recognized need for program to encourage attainment of clean air standards
without discouraging economic growth
’76 EPA interpretive ruling
“offset program” within SIPs,
later codified by Congress
in ’77 CAA
Offset program permits states to develop plans to allow construction
where accompanied by a corresponding reduction in an existing pollution source
42 USC 7502(b)(6) and 7503
A new emitting facility can be built
if an existing pollution source decreases emissions or ceases operations
as long as a positive net air quality benefit occurs
If proposed factory emits carbon monoxide, sulphur dioxide, or particulates,
EPA requires offsetting pollution source be within immediate vicinity of new plant
Hydrocarbons & nitrogen oxide less “site specific”
ruling permits offsetting source to locate anywhere within a broad vicinity of new source
Offset Program – 2 important requirements
13 (1) determine base time period to calculate how much reduction needed in existing
pollutants to offset new source
base period first year of SIP; if no SIP, year in which construction permit application filed
Offset Program – 2 important requirements
(2) requires new source adopt the Lowest Achievable Emissions Rate (LAER) under the
most modern technology available in the industry
Hampton Roads Energy Co. (HERC) proposes to build petroleum refinery & offloading
facility Portsmouth, Va.,
non-attainment area for photochemical oxidants, created when hydrocarbons released
& react with other substances.
Refinery is major source of hydrocarbons, CAA prevents construction
’75 HERC applied to Va State Air Pollution Control Bd (VSAPCB) for refinery
construction permit
VSAPCB proposed use of offset ruling to comply with CAA in 11/77 SIP; reduce amt of
cutback asphalt road paving in 3 hgwy dists.
EPA considered comments and approved Va offset program 1/80
CARE 4 issues re SIP:
(1) geographic area used as base for offset was arbitrary in violation of regs.
(2) Should have used ’75, not ’77 as base year to compare usage of cutback asphalt
CARE 4 issues re SIP:
(3) disapprove offset program because state already voluntarily reducing use of cutback
asphalt
CARE 4 issues re SIP:
(4) questions approval of plan without definite Lowest Achievable Emissions Rates
(LAER) as required by CAA
Court deferred to EPA’s calculation of LAER
Court rejects CARE challenges to SIP
EPA ruling permits a broad area (usually one AQCR) to be used for offset basis
VA ultimately chose 3 hgwy districts for geographic area, not arbitrary & capricious, nor
outside CAA statute
Congress intended states & EPA be given flexibility in designing & implementing SIPs
allows states to make reasoned choices which areas used to offset new pollution and
how to implement plan
Offset program initiated to encourage economic growth in the state
14 SIP to reduce hgwy dept pollution to attract another industry is reasonable contribution
to economic growth without pollution increase
Offset program had to be divided into districts to be sensibly administered and
monitored by hgwy dept.
Use of other admin areas would be unwieldy & difficult to administer
Scientific understanding of ozone pollution is not advanced to point to predict exact air
transport.
designation of broad area in which hydrocarbons may be transported is well within
discretion & expertise of agency.
EPA must determine hydrocarbon emissions volume from asphalt cutback, weather &
road conditions varies greatly from year to year
EPA decided 77 was acceptable base year, rather than 75 yr in which application made.
’77 logical base year
Offset ruling not until 76, VA permit issued with extensive revisions in 77,
VA policy to shift from cutback asphalt to less expensive emulsified asphalt an effort to
save money,
totally unrelated to SIP
CARE argues not a proper offset,
not an actual reduction in pollution
Va voluntary plan was not enforceable and, therefore, not in compliance with 76 ruling
re offsets.
EPA in approving SIP ltr from VA atty general re requisites satisfied for enforcing plan
with state highway dept.
Otherwise, no decrease in asphalt pollution guaranteed under voluntary program.
Offset program guarantees pollution reduction from road paving operations
EPA examined data, requested changes in plan; approved SIP only after changes were
made.
No indication EPA was arbitrary & capricous, or acted in a manner not in accordance
with CAA.
Affirm EPA decision in approving SIP
Next Time: Air Pollution continues
Hazardous Air Pollutants
PSD areas
(“prevention of significant deterioration”)
15 Non-attainment Problem
Mobile Source Provisions
16