On October 1, 2015, the United States Environmental Protection Agency (“EPA”) adopted stricter regulation on ozone emissions that will fall heavily on California, and most particularly on the transportation sector, including airlines. The new standard strengthens limits on ground level ozone to 70 parts per billion (“PPB”), down from 75 PPB adopted in 2008. The EPA’s action arises from the mandate of the Clean Air Act (“CAA”), from which the EPA derives its regulatory powers, 42 U.S.C. § 7409(a)(1), and which requires that pollution levels be set so as to protect public health with an “adequate margin of safety. 42 U.S.C. § 7409(b).
California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government
On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).
EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines
Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions. See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).
Santa Monica Airport Commission's Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law
The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft. The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines.
The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines. “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.” 42 U.S.C. § 7571(a)(2)(A) and (a)(3). There are, however, some limits on EPA’s authority.
EPA Extends Public Comment Period for "Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units"
On March 6, 2014, the Environmental Protection Agency (“EPA”) announced the 60-day extension of the comment period for the January 8, 2014 proposed “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” and the February 26, 2014 notice of data availability soliciting comments on the provisions in the Energy Policy Act of 2005.Continue Reading...
High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations
On Monday, February 24, the United States Supreme Court watched the Environmental Protection Agency (“EPA”), industry groups and sympathetic states take the ring over what the challengers call a “brazen power grab” by the Obama Administration and its environmental regulators, aimed at limited carbon emissions from new stationary sources such as power plants and factories.
This is not the first time the same parties have squared off over greenhouse gas (“GHG”) regulation. In 2008, the Obama Administration initiated rules governing mobile sources, requiring new motor vehicles to demonstrate better fuel efficiency and, thus, reduce carbon emissions. The High Court effectively upheld those rules by refusing to hear the challenges against them. The Administration this week announced plans to expand mobile source regulation by enacting new limits on carbon emissions for trucks and buses. EPA has hit a brick wall, however, with its expansion of regulation to stationary sources, concerning which the High Court will now be hearing oral argument on six different appeals. The upcoming legal battle, like so many others over environmental regulation, is fraught with political overtones, as well as a variety of legal issues.
Environmental Protection Agency (“EPA”) Administrator Lisa Jackson’s sudden resignation last week is not surprising in light of the recent revelations about the EPA’s use of “alias” e-mail accounts, purportedly for private communications between EPA officials. The use of such “aliases,” to protect confidential agency communications, appears on the surface benign. However, in the face of the statutory mandate for Federal government transparency, represented by the Federal Freedom of Information Act, 5 U.S.C. § 552, et seq., (“FOIA”), it is an ominous harbinger of the secretiveness of those who are appointed to serve the American public.Continue Reading...
On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job. What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D). That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” The D.C. Circuit found major legal flaws in EPA’s Transport Rule.
On June 18, 2012, the Environmental Protection Agency (“EPA”) posted in the Federal Register, Vol. 77, No. 117, 36342, its Final Rule adopting several new aircraft engine emission standards for oxides of nitrogen (“NOx”) for aircraft turbofan or turbojet engines with rated thrusts greater than 26.7 kilonewtons (kN), or in common parlance, commercial passenger and freighter aircraft normally used at airports across the United States. The rule applies only to the manufacture of new aircraft engines, not to retrofit of existing aircraft engines.
The EPA’s stated purpose in enacting the new rule is two-fold. First, NOx is strongly correlated with nitrogen dioxide (“NO2”) which is a “criteria pollutant” under the EPA’s National Ambient Air Quality Standards (“NAAQS”), and is an important precursor gas in the formation of ozone and secondary particulate matter (“PM2.5”) which are common air pollutants in urban areas where airports are often located. Second, the new rule will bring United States’ emissions standards into consistency with those established by the International Civil Aviation Organization (“ICAO”), see ICAO Annex 16, Vol. II, 2010 that the U.S. helped to develop and supports as part of the international process.
The rule contains six major provisions.
On March 27, 2012, the Environmental Protection Agency (“EPA”) proposed a Carbon Pollution Standard for New Power Plants (“Carbon Standard”), setting national limits on the amount of carbon pollution power plants built in the future can emit. The rules are a reaction to the United States Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), in which, among other things, the Supreme Court held that greenhouse gases, including carbon dioxide (“CO2”) are air pollutants under the Clean Air Act. EPA was charged by the court with issuing an “endangerment finding,” i.e., a determination that greenhouse gases threaten public health and welfare which was issued on December 15, 2009.
Immediately upon their initial promulgation, the Carbon Standard generated more contention than power plants generate greenhouse gases. The Wall Street Journal charged, in an article entitled “Killing Coal,” that “because the putative ‘regulatory impact’ would be zero, there are also no benefits.” It went on to say that, because the rule would apply not only to new plants but also to every plant upgrade or modification in existing facilities; and because the technology required to meet the standard is still speculative, the EPA’s real goal must be to put a stop to the use of coal in electricity generating.
The EPA immediately fired back, characterizing the critique of the Carbon Standard in, among others, the Wall Street Journal, as examples of “fact free assault.” Assistant Administrator Gina McCarthy pointed to the “example” that, in fact, “this standard only applies to new sources – that is power plants that will be constructed in the future. This standard would never apply to existing power plants.” Moreover, again pointing to the Wall Street Journal editorial, she stated “the proposed rule explicitly does not apply to facilities making such modifications. In fact, EPA did not propose a standard for any modifications.”
The proposed Carbon Standard speaks for itself.Continue Reading...
On March 28, 2012, the Environmental Protection Agency (“EPA”) and Department of Justice (“DOJ”) announced their first settlement of an enforcement action addressing Federal Clean Air Act (“CAA”) violations in the marine engine manufacturing and ship building industries. Under that settlement, Coltec Industries, Inc. (“Coltec”) and National Steel and Shipbuilding Company (“National Steel”) have agreed to pay a civil penalty of $280,000 and spend approximately $500,000 on an environmental project to resolve alleged violations of the CAA and the EPA’s marine diesel engine air rules. Coltec is a subsidiary of EnPro Industries, Inc. and operates Fairbank Morse Engines which supplies marine propulsion and ship service systems to the United States Navy and Coast Guard. National Steel is a subsidiary of General Dynamics which designs and builds support ships, oil tankers and dry cargo carriers for the United States Navy and commercial markets.Continue Reading...
Challengers to the determinations of Federal agencies do not go to court on a level playing field with their governmental adversaries. Federal courts have long taken the position that deference is properly accorded to an agency making decisions within its area of technical expertise. That position may now be changing, at least with respect to two specific sets of legal circumstances.Continue Reading...
EPA Issues "Amendment" to Definition of Condensable Particulate Matter as Regulated New Source Review Pollutant
On Thursday, March 16, 2012, the Environmental Protection Agency (“EPA”) took the almost unprecedented step of publishing in the Federal Register a correction to its prior definition of “regulated new source review pollutant” (“Rule”) contained in two sets of Prevention of Significant Deterioration (“PSD”) regulations, 40 C.F.R. §§ 51.166 and 52.21, and in EPA’s Emissions Offset Interpretative Ruling, 40 C.F.R. Part 51, Appendix S, 77 Fed.Reg. 15,656. The purpose of the revision is to correct an “inadvertent error” dating back to the Rule’s promulgation in 2008 when the then-existing definition was changed to require that particulate matter emissions, both PM10 and PM2.5, representing three separate size ranges of particulates, must include “gaseous emissions, source or activity which condense to form particulate matter at ambient temperatures,” i.e., condensable particulate matter. See, e.g., 40 C.F.R. § 51.166(b)(49)(vi). Previously, EPA’s regulations only required the filterable fraction, not the condensable particulate matter, to be considered for new source review purposes. The 2008 change therefore imposed an unintended new requirement on State and local agencies and the regulated community.Continue Reading...
Tinicum Township, Pennsylvania's Challenge to the Philadelphia International Airport Expansion Project Goes to Court
On Tuesday, March 6, 2012, Tinicum Township, Pennsylvania and its partners County of Delaware, Pennsylvania; Thomas J. Giancristoforo; and David McCann (“Petitioners”) took their grievances with the ongoing expansion project at Philadelphia International Airport (“PHL”) to the 3rd Circuit Federal Court of Appeals in Philadelphia. Petitioners, made up of communities and residents surrounding the airport, expressed their concern with the Federal Aviation Administration’s (“FAA”) often-ignored failure to adequately disclose and analyze the project’s air quality and land use impacts.
Relying most heavily on consistent objections to the project by the Environmental Protection Agency (“EPA”) the Federal agency delegated by Congress with the power to promulgate and enforce regulations governing Clean Air Act compliance, Petitioners asserted that their claims are based on: (1) FAA’s failure to comply with the disclosure and analysis requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”); (2) the EPA’s right to receive deference from the Court to its negative views of the project because, in the 3rd Circuit, “deference follows delegation,” see, e.g., Chao v. Community Trust Company, 474 F.3d 75, 85 (3rd Cir. 2007); and (3) FAA’s violation of the Airport Airway Improvement Act, 49 U.S.C. § 47101, et seq., (“AAIA”) requirement that airport projects be reasonably consistent with the existing plans of jurisdictions authorized by the State in which the airport is located to plan for the development of the area surrounding the airport. 49 U.S.C. § 47106(a)(1). FAA disagreed with Petitioners’ assertions of deference and claimed that they had complied with the AAIA by relying on the plans of the Delaware Valley Regional Planning Commission. (See Philadelphia Inquirer, March 6, 2012 and Delaware County Daily Times, March 7, 2012 for catalog of FAA arguments.)
The three judge panel expressed satisfaction with the scope of the oral argument, but is not subject to any specific time period within which to render its decision.
In National Association of Homebuilders, et al. v. Environmental Protection Agency, et al., 2011 W.L. 6118589 (December 9, 2011) (“Homebuilders”) the D.C. Circuit Court of Appeals has raised the bar for Article III standing in actions involving private petitioners or appellants. While recent years have seen a loosening of the standing requirements for states (see, e.g., Massachusetts v. EPA, 549 U.S. 497, 518 (2007) [“This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, and all the earth and air within its domain”], and municipalities (see, e.g., City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (2002) [“In this Circuit we have found standing for a city suing an arm of the Federal government when a harm to the City itself has been alleged” [emphasis added]], Homebuilders represents an escalation of the existing standing restrictions for individuals and organizations that represent them.
Article III of the United States Constitution “limits Federal Court jurisdiction to ‘cases’ and ‘controversies.’ Those two words confine ‘the business of Federal Courts to questions represented in an adversary context and in a forum historically viewed as capable of resolution through the judicial process.’” Massachusetts, supra, 549 U.S. at 515, quoting Flast v. Cohen, 392 U.S. 83, 95 (1968). In order to establish Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts, supra, 549 U.S. at 517. In Homebuilders, the National Association of Homebuilders (“NAHB”), which represents a variety of individual developers, brought suit challenging the determination by the United States Environmental Protection Agency (“EPA”) and United States Army Corps of Engineers (“ACOE”) that certain reaches of the Santa Cruz River in Arizona constitute “Traditional Navigable Waters” (“TNW”), thus subjecting those reaches to Federal regulation. The Court in Homebuilders rejected NAHB’s attempts to fit under the umbrellas of organizational, representational or procedural standing on the following grounds.
The National Resources Defense Council Challenge to the Southern California Air Quality Management District Administration of Emissions Credits Rejected by Ninth Circuit Court of Appeals
In National Resources Defense Council v. Southern California Air Quality Management District, 2011 W.L. 2557246 (C.A. 9 (Cal.)), the National Resources Defense Council (“NRDC”) sought to call the Southern California Air Quality Management District (“SCAQMD”) to account for purportedly using invalid “offsets” for emissions increases resulting from new stationary sources. A panel of the Federal Ninth Circuit Court of Appeals found, however, that: (1) the District Court’s decision refusing to hold SCAQMD to a validity standard for its internal “offsets” for emissions increases was correct because such a validity standard is not required by the Clean Air Act (“CAA”), 42 U.S.C. section 7503(c) (“Section 173(c)”); and (2) ironically, the District Court lacked jurisdiction to reach that decision where original jurisdiction lies in the Courts of Appeals pursuant to CAA section 7607.Continue Reading...
Day Two of the Hearings on the American Clean Energy and Security Act, also known as the Waxman-Markey bill, proved to be as contentious as expected. There was much evidence that the Bill would not have an easy road ahead of it, since the Committee is deeply divided. Although there were a few forays into the ridiculous, (Rep. John Shimkus (R.-Ill.: "I think this is the greatest assault on democracy and freedom that I've ever seen in Congress;" Energy Secretary Steven Chu comparing the Bill to Wayne Gretsky' famous comment that "I was good because I skated to where the puck will be" (upon reflection, that comparison does work)), the Committee focused its questions to Panels (which featured EPA Administrator Lisa Jackson, Energy Secretary Steven Chu and Transportation Secretary Ray LaHood) on the issues of jobs, allowances, energy costs, and American leadership in the world.
In these times of economic uncertainty, no issue pulls at the hearts of politicians than jobs, especially when it can be used to hammer a point home. Rep. Joe Barton (R.-Texas) led the way citing statistics from the National Association of Manufacturers, the Heritage Foundation, and Charles Rivers Associate claiming that the bill would result in anywhere from 1.8 to 7 million jobs "destroyed." Rep. Shimkus made his statement about jobs in a more theatrical way, stating that "those of us who want jobs are going to try to defeat this bill" while hoisting a small lump of coal for the panelists to see.
On the other hand, the proponents of the Bill were not about to concede that the Bill would cause mass unemployment. Rep. Waxman asked EPA Administrator Jackson, Secretary Chu, and Secretary LaHood if they believed that the Bill would create jobs. Administrator Jackson replied that she believed the Bill is a "jobs bill." Secretary LaHood added that the legislation would create jobs, "especially green jobs." Secretary Chu agreed that the Bill would create millions of jobs and reduce America's dependence on foreign oil.
Cap-And-Trade and Allowances
The part of the Bill that drew the most fire were the allowances: should they be given away or should be they auctioned or should there be some sort of hybrid. Administrator Jackson stated for the record that the Obama Administration supported the idea that 100 percent of the allowances should be auctioned. In response to Rep. Jay Inslee's (D.-Wash.) statement that we have to multiple approaches to addressing the problem through EPA regulations and a cap passed by Congress, Administrator Jackson stated that she "could not agree more." A cap-and-trade law, she continued, was "powerful and necessary," but we need other regulations as well.
Understandably, the energy company officials who testified were not so eager to embrace a 100% auction. They wanted at least some free allowances, while various scientists ad economists stated that a cap-and-trade with an auction is the only way to go. Rep. Cliff Stearns (R.-Fla.) stated that "free carbon credits were windfall profits in Europe." Contrast that statement with Rep. Ralph Hall's (R.-Texas) statement that "we'll be in a weakened position if adopt cap-and-trade." Thus, there is much work to get to a point where there can be agreement on whether there should be a cap-and-trade, let alone whether it should be a 100% auction of allowances or something else.
The other big issue at the Hearing, particularly with respect to the later panels, was energy costs. Rep. Barton told the Committee that "the debate is not about whether cap-and-trade legislation will raise energy costs; the only dispute is by how much." He then went on to cite "findings" that the Bill would increase household energy costs up to $3,128 per year and that "filling your gas tank will cost anywhere from 60 to 144 percent more. The cost of home heating oil and natural gas will nearly double." Rep. Fred Upton (R.-Mich.) commented that this was not a "cap-and-trade," this was a "cap-and-tax."
The response to this onslaught was a little more nuanced. Secretary Chu responded that "it would be unwise to want to increase the price of gasoline" and then went on to outline the plans to lower transportation costs with electric cars, and low-carbon fuels, among other things. In response to a question from Rep. Jane Harman (D.-Calif.) Secretary Chu indicated that refrigerators use one quarter the amount of energy they used in 1975 and these are real savings seen by households. He then concluded by stating his belief that the "overall costs of living . . . can be held constant." Even the ConocoPhilips Executive Red Cavaney stated that although there will be costs "the benefits to the overall American economy will outweigh these costs."
Another area of concern addressed at the Hearing was the wisdom of the United States regulating climate change when there are no assurances that the number one and two emitters in the world - China and India - will also take steps to reduce their emissions. Rep. Ed Whitfield (R-Ky.) asked Secretary Chu: "If we unilaterally move to take steps and China and India and other countries are not, how do we deal with that?" Chu responded that that he believed that the United States should take a leadership role on this issue. This sentiment was echoed by Rep. Diana DeGette (D-Colo.) who stated that she believed that America should lead and not wait for India and China to get their act together.
Outside the Committee Room Rep. Rick Boucher (D.Va.) and Rep. Jim Matheson (D.Utah) stated that they would meet with Chairman Waxman to discuss a comprehensive amendment that could be presented on Thursday. Rep. Boucher stated that the Bill's schedule was "achievable" but it would depend on whether an agreement could be quickly reached on issues including how to allocate credits to existing industries, the schedule for reducing carbon emissions and flexibility in meeting renewable electricity requirements.
Click on "continue reading" for a complete Witness List with links to the witnesses written testimony and links to the video of the Hearing.Continue Reading...
On Day One of a planned four days of hearings on the American Clean Energy and Security Act of 2009, also known as the Waxman-Markey bill, there were no surprises. This day was devoted to "opening statements" by the members of the Committee, before the Administration's heavy hitters take the stage tomorrow. With a resounding "the time for delay and denial has come to an end," Chairman of the Energy and Environment Subcommittee, Rep. Edward Markey (D-Mass.) opened the hearings.
As could be predicted, the Climate Change skeptics were present. Leading the way was Rep. Steve Scalise (R-La.) stating that the causes of global warming are far from settled. Although not really doubting the existence of Climate Change, Rep. Michael C. Burgess (R-Texas) issued a veiled threat, claiming "we do have the capacity to withhold funding from the EPA" if the EPA chooses to regulate CO2 on its own.
Jobs and the economy were another major concern. On the one hand you had Rep. Joseph Pitts (R-Pa.) who believes that the Bill will cost jobs and hurt an already hurting economy. This was also the concern of Rep. Zachary Space (D-Ohio) who stated that the Bill is vitally important to the coal and manufacturing industries in Ohio - a state hard hit by the economic downturn.
On the other hand, Rep. Doris Matsui (D-Calif.) related that new companies in her district are building the "clean energy economy. They are the realities of the modern American economy. They are real businesses creating real jobs." Likewise, Rep. John Sarbanes (D-Md.), added that clean energy jobs plan "is turning the Titanic around." Rep. Jay Inslee (D-Wash.) is worried that we are already falling behind: "we can't let China dominate the lithium battery car market. We need to keep those jobs here. This bill will do that." That being said, Rep. Michael C. Burgess (D-Texas) threw cold water on the notion of a clean energy economy, stating that new energy technology should be left up to stronger, growing economies.
Representatives from both sides of the aisle from coal producing had comments about the effect the Bill would have on the coal industry. Rep. Ed Whitfield (R-Ky.) said that he thought that because China is building more coal plants, the United States should, too.
One of the topics that was mentioned more than once was what should be considered to be "renewable energy." Rep. Bart Gordon (D-Tenn.) stated that he wanted clean coal and nuclear to be considered renewable, as well as credits for renewable forms of energy. Likewise, Rep. Baron Hill, (D-Ind.) came up with an interesting proposal - he wants municipal solid waste to be categorized as a renewable resource.
As can be expected, there were many questions and comments about the structure and goals of the bill itself. Rep. Whitfield commented that the problems with the structure of the Bill "may dwarf" those of climate change. Like wise, Rep. Jim Mattheson (D-Utah) had many objections to content and structure of the Bill. Rep. G.K. Butterfield (D-N.C.) said that 20% by 2025 is impossible. Thus, there is still much work to be done on the Bill.
At the same time, the EPA released its review of the Bill, concluding that the proposed curbs on U.S. greenhouse gas emissions would allow limited economic growth while spawning development of low-carbon energy technologies.
- Click here for EPA's Analysis
- Click here for the EPA's Analysis Appendix
- Click here for the EPA's Executive Summary
Tomorrow, the big guns are set to appear before the Committee: EPA Administrator Lisa Jackson, Energy Secretary Steven Chu, and Transportation Secretary Ray LaHood are all scheduled to give testimony.
In February, 2007, almost as an after-thought, theFAA included changes to air traffic control procedures to its Presumed to Conform rule. This last minute addition has the potential to seriously impact communities around the airports where these changes to air traffic control procedures take place.
Why will this obscure regulatory change affect communities? First, a little background on the subject will be helpful. Air quality and noise are the primary concerns of communities around airports. Since Federal law severely limits the ability of communities to affect the amount of noise produced at airports, many communities have focused on protecting their air quality. The conformity provisions of the Clean Air Act provide a useful tool in that regard. They require that all Federal agencies ensure that their projects will not affect the State Implementation Plan (SIP), which is a plan drafted by the state and approved by the EPA in order to come into compliance with other provisions of the Clean Air Act. This “conformity determination” provides communities around airports with needed data concerning the effect the agency’s action will have on the air quality. Moreover, if the Federal agency fails to perform a conformity determination or fails to do it properly, then that it is grounds for the community to object to the Federal agency’s action as a whole.
At a April 2, 2008, hearing entitled "From the Wright Brothers to the Right Solutions: Curbing Soaring Aviation Emissions," the EPA indicated its plans to release an advance notice of proposed rulemaking (ANPRM) soon to solicit comments regarding curbing greenhouse gas (GHG) emissions from aircraft engines. Robert Meyers, principal deputy assistant administrator for the EPA Office of Air and Radiation, testified before the House Select Committee on Energy Independence and Global Warming that the agency had received petitions urging EPA to determine that aircraft emissions cause or contribute to air pollution and endanger public health. The petitions further urge EPA to adopt regulations to control emissions. The FAA also presented its thought at the Hearing. Daniel K. Elwell, Assistant Administrator, Office of Aviation Policy, Planning and Environment, testified that the FAA believed that strides were already being made toward reducing GHG emitted from aircraft and counseled patience, since aircraft emissions account for only 3% of GHG in the United States.
- James C. May, President and CEO, Air Transport Association of America
- Deron Lovaas, Transportation and Energy Project Co-Director, Natual Resources Defense Council and
- Thomas S. Windmuller, Senior Vice President, International Air Transport Association
Group of Concerned Cities, Companies and Citizens Files Comments Regarding EPA's Proposed General Conformity Revisions
The General Conformity Rules, which the EPA promulgated in 1993 and has not substantially updated since then, require Federal agencies to evaluate the effect their actions will have on air quality prior to their taking any such action. The Group expressed concern that the revisions that the EPA was suggesting took away some of the protection that the Clean Air Act granted citizens in section 176 (42 U.S.C. 7506). In addition, the Comment letter stated that the EPA:
- should not allow Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
- should not allow Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
- should not allow the Federal agencies to unilaterally decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
- should add a definition of applicability analysis.
- should delete the "presumed to conform" program, since only one agency has taken advantage of it in 15 years and it most likely violates the Clean Air Act and the Constitution.
On January 8, 2008, the United States Environmental Protection Agency published its proposed revisions to the General Conformity Rules. Under the Clean Air Act, a State develops a State Implementation Plan (SIP), which is the State’s plan for bringing sections of the state which do not comply with the Clean Air Act into compliance. Before any Federal agency takes or funds any action, it must ensure that the project will not interfere with the SIP – that is, it must assure that the Federal action is in “conformity” with the SIP. The General Conformity regulations are the regulations, promulgated by the EPA, implementing the Clean Air Act's "conformity provision.
The General Conformity regulations have become critical to communities around airports because the FAA’s conformity determination is often the only analysis that the FAA will perform with respect to how its projects will affect the air quality in the area around the airport. Thus, we have sought to keep these regulations strong so that Federal agencies, such as the FAA, have to provide the communities around airports with information about the effect their projects have on air quality and ensure that the actions of the Federal agencies dop not adversely impact air quality in the communities.
The EPA’s proposed revisions, the way we read them, weaken those principles in the following ways:
- By allowing Federal agencies, in certain instances, to shift the burden of proving that the project conforms to the SIP onto “third parties” (that is, the communities) and the EPA.
- By allowing the Federal agencies to obtain permission to emit air pollutants without any connection to a particular project thereby eliminating the need for them to analyze air quality when they undertake projects. Thus, emission increases are effectively hidden in the SIP, unseen and unanalyzed by the communities.
- By allowing the Federal agencies to unilaterally decide when an analysis is necessary, rather than requiring them to perform an analysis every time.
Comments on the proposed revisions are due April 14, 2008, one month after a public hearing held in Washington D.C. on March 14, 2008. We will post our comments as soon as they are submitted to the EPA.