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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