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”).  

Earth Justice and Friends of the Earth originally petitioned EPA in 2007, pursuant to CAA Section 231, which directs EPA to study air pollutants from aircraft “to determine (A) the extent to which such emissions affect air quality in air quality control regions throughout the United States, and (B) the technological feasibility of controlling such emissions.”  Section 231(a)(1).  Under subsections (a)(2) and (3), if EPA finds that emissions from aircraft and aircraft engines cause or contribute to “air pollution which may reasonably be anticipated to endanger public health or welfare,” it “shall” propose and issue standards to control such emissions.  In 2010, EPA had still not responded to their 2007 Petition.  
 

Friends of the Earth and Center for Biological Diversity then filed suit, asserting violation of Section 231, to which EPA responded that Section 231 imposes no legal obligation to proceed with an “Endangerment Finding.”  The court disagreed, holding that EPA’s duty is, in fact, compulsory. Center for Biological Diversity v. EPA, 794 F.Supp.2d 151, 162 (D.D.C. 2011).  

In June, 2012, EPA responded that it would begin work on the Finding within the court ordered period of 90 days after the United States Court of Appeals for the District of Columbia Circuit ruled on the validity of EPA’s 2009 “Endangerment Finding on Greenhouse Gas Emissions from New Motor Vehicles.”  EPA further committed that the process, involving development of the Finding, publishing and taking comments would take about 22 months.  

Even though the D.C. Circuit had ruled on the EPA’s Endangerment Finding for Greenhouse Gas Emissions from New Motor Vehicles on or about June 26, 2012, more than two years later, EPA had not taken even the preliminary step of issuing a draft Endangerment Finding for aircraft emissions (or of reaffirming that another Endangerment Finding for greenhouse gases is unnecessary, as EPA has repeatedly done in connection with greenhouse gases from other sources).  

Petitioners claim to consider action by EPA urgent, on the asserted grounds that United States domestic aviation may have accounted for about 3% of total United States greenhouse gas emissions in 2005, and, by 2006, was “viewed as the fastest growing source of carbon dioxide emissions worldwide, increasing at a rate of nearly 5% per year.”  

Impatient with further delay, after more than 6 years of delay since the original Petition, the Petitioners have given notice to EPA pursuant to CAA § 7604 (also referred to as “Section 304”) which provides, in pertinent party, that “[t]he district courts of the United States shall have jurisdiction to compel . . . agency action unreasonably delayed,” and requires that any person intending to file a legal action against EPA for unreasonable delay must provide notice of his or her intention to sue 180 days before commencing such action.  See also, 40 C.F.R. § 54.  Therefore, Petitioners have put EPA on notice that by on or about February 1, 2015, 180 days after the date of their letter, they intend to enforce EPA’s obligation either through litigation, or through resolution.  

Petitioners do not, however, touch upon the full panoply of impacts EPA’s issuance of a new rule governing emissions from aircraft engines will have, not only on those who are exposed to greenhouse gas emissions, but also upon those who will suffer the economic impacts of adapting to new restrictions, such as aircraft engine manufacturers and aircraft operators.  The proverbial “jury” is still out as to the way in which those interests will be balanced in EPA’s rulemaking process.  

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. 
 

In one corner of the ring is a political juggernaut made up of Texas, Florida and 15 other conservative states, together with business and energy groups who are accusing the Administration of having overstepped its legal and constitutional authority by refusing to wait for Congressional action, and instead expanding the regulatory scope of the Federal Clean Air Act, 42 U.S.C. § 7401, et seq., (“CAA”) administratively.  In the words of the United States Chamber of Commerce, the Administration has enacted “the costliest, farthest reaching, and most intrusive regulatory apparatus in the history of the American administrative state.”  Specifically, the challengers argue that the scope of the regulations, while nominally limited to sources such as power plants and factories, would, in fact, include millions of other sources such as hospitals, shopping malls and universities, and would cause the cost of energy to rise dramatically. 

In the other corner are the EPA and environmental groups.  EPA argues that the Administration’s regulatory initiative was already sanctioned by the High Court as long ago as 2007, when the Court agreed with EPA that carbon monoxide, methane and nitrous oxide are pollutants subject to EPA regulation under the CAA.  The Court split in that decision, however, with the four conservative Justices taking the position that the Clean Air Act only covers air pollutants that affect breathing, not those that trap solar energy and contribute to climate change.  Observers expect a similar split this time, with Justice Anthony Kennedy, who voted with the majority in 2007, once again providing the deciding vote. 

Environmentalists argue the narrow scope of the regulation which they claim is limited to new, major emitters of GHGs, such as power plants, not any facility that emits GHGs, and that the targeted facilities are required to use “best available technology” to obtain a permit, a requirement that would exclude all less intrusive uses.  Until the High Court acts, however, the final bell will not be rung on the legal and political contests over the proper scope of GHG regulation under the CAA. 

EPA Takes Its First Enforcement Action Under Marine Diesel Engine Air Rules

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.

The CAA prohibits marine diesel engines from being sold in the U.S. unless the engines are covered by a certificate of conformity and have an EPA label indicating that the engine meets applicable emissions standards.  Engines that are not certified may be operating without proper emissions controls and emitting excess carbon monoxide and nitrogen oxides.  On September 30, 2010, the DOJ filed a complaint which alleged that Coltec violated the CAA by manufacturing and selling 32 marine diesel engines that were not covered by an EPA-issued Certificate of Conformity and that National Steel violated the CAA by installing those engines in ships that National Steel built and sold to the U.S. Navy.  The complaint also alleged that the 32 uncertified Coltec engines, plus eight more certified engines Coltec sold to National Steel, had missing or improper emissions compliance labels required by EPA’s regulations.  Finally, the complaint alleged that National Steel further violated the CAA by manufacturing and selling ships containing an additional six uncertified engines. 

The settlement includes a supplemental environmental project in which Coltec and National Steel will install a NOx control system to an engine test stand exhaust stack connected to Coltec’s Beloit, Wisconsin engine manufacturing facility.  The engine test stand is used for testing large marine diesel engines.  The NOx controls required by the settlement are estimated to reduce levels of NOx by at least 85%, from approximately 102 pounds emitted per hour to approximately 16 pounds per hour.

The settlement appears to serve the purposes of all the parties.  On the one hand, the EPA sees the settlement as ensuring that engines meet requirements and encouraging environmental projects that benefit nearby communities as well as making the air cleaner not just for nearby neighborhoods but also for the Southern Wisconsin region as a whole.  On the other hand, the companies avoided a much more severe penalty that might have been imposed by a court given the breadth, number and type of violations. 

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.
 

Legislature Asked to Grant CEQA Relief for Rail Projects

Following in the footsteps of his colleagues, on January 6, 2012, Assemblyman Mike Feuer introduced legislation that would give rail projects the same type of relief from California Environmental Quality Act (“CEQA”) requirements that were received in the last session by the proposed NFL stadium in Los Angeles, and some renewable energy projects. Notably, the CEQA amendments enacted for the NFL stadium include a very short time frame of 175 days for resolution of CEQA issues. While current CEQA litigation may extend to two years or more, depending on the complexity of the project and workload of the court, it stands to reason that issues surrounding local projects such as the stadium, with local traffic, noise and air quality impacts, may potentially be resolved within the 175 day timeframe. Rail projects are of far different scope, geographic extent, and are subject to a different set of laws.

Indeed, the geographic size of rail projects implicates the greater scope of legal applicability. Rail projects, even if, like the current “high speed rail,” limited to within the borders of California, will, of necessity, be recipients of Federal funding. Consequently, Federal environmental statutes, including the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and the Federal Clean Air Act, 42 U.S.C. § 7501, et seq., apply. Thus, while the California legislature may attenuate the CEQA process, the rail projects will still remain hostage to NEPA.

Finally, even if rail projects could proceed without Federal funding, which they most likely cannot, where they cross state lines, the Interstate Commerce Clause of the United States Constitution is implicated, and Federal law will apply. In short, to attenuate the environmental review process for major transportation projects will require a different legislative template, at a different legislative forum, the United States Congress.
 

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.

Specifically, CAA is a state/federal partnership, see, e.g., CAA section 7402. The United States Environmental Protection Agency (“EPA”) develops and approves National Ambient Air Quality Standards (“NAAQS”), CAA section 7409(n). States enforce the NAAQS through State Implementation Plans (“SIP”), which must be approved by the EPA and become Federal law after they are approved. CAA section 7410(a), (k).

In regions that have not been found to attain the NAAQS (“nonattainment regions”), SIPs must require permits for construction and operation of new or modified major stationary emission sources. In addition, CAA section 7503(a)(1)(A) (“Section 173”) requires that new emission sources obtain “offsetting emissions reductions.” Section 173(c) also requires that such “offsets” be “in effect and enforceable” when a new source comes on line, as well as “offset by an equal or greater reduction” that was not “otherwise required.” Id.

The SIP for the Southern California Air Basin, developed by SCAQMD, sets forth its new source review program in regulation XIII, which has been substantially approved by EPA. Rule 1303(b)(2) of Regulation XIII establishes guidelines for acceptable offsets. The first mechanism is Emission Reduction Credits (“ERC”), Rule 1309(b)(d)(e), which contains five specific validity requirements: offsets must be (1) real; (2) quantifiable; (3) enforceable; (4) permanent; and (5) surplus beyond existing requirements. The second mechanism is allocation from a priority reserve maintained by SCAQMD, pursuant to Rule 1309.1, which serves to compensate for certain priority sources and exemptions allowed under SCAQMD Rule 1304.

In this case, NRDC claims that SCAQMD violates CAA Section 173(c) by depositing and distributing credits that do not meet the requirements of Rule 1309(b)(d) or (e) from its priority reserve accounts. In its holding, the Court first reasoned that exclusive jurisdiction lies in the Federal Courts of Appeals because, in 2006, EPA had promulgated a rule approving revisions to the SIP for the South Coast Air Basin, 71 Fed.Reg. 35,157 (June 19, 2006) and “determining that SCAQMD’s internal credits complied with section 173(c).” Id. The Court went on to find that the promulgation of the above rule constituted a “final action of the administration,” constituting “consummation of the agency’s decisionmaking process such that legal consequences will flow from it.” The Court found that, because EPA approved both the SIP and the integrity of SCAQMD’s priority reserve accounts with respect to compliance with Section 173(c), NRDC was “effectively seeking review of the EPA’s decision,” which may only be brought in the Federal Courts of Appeals. CAA section 7607.

The Court then went to the substance of NRDC’s claim of invalidity of SCAQMD’s internal offsets. There, it held that Rule XIII distinguishes between ERCs, to which the five enumerated validity requirements apply, and internal offsets such as those in SCAQMD’s priority reserve to which they do not. In doing so, the Court opined: “Applying the ERC validity requirements to the internal offsets would require collapsing this distinction between ERCs and the priority reserve. Doing so would be inconsistent with the disjunctive ‘either/or’ language of Rule 1303(b)(2).”

The importance of this decision should not be underestimated. First, in finding that any challenge to a SIP approved by the EPA constitutes a challenge to the EPA which may only be brought in the Federal Courts of Appeals constrains access to the district courts for potential litigants; eliminates the mediation of the appellate courts which is normally available in the Federal system between the district courts and largely inaccessible United States Supreme Court, and requires potentially greater expenditure of funds to access the higher courts. Moreover, the Court’s substantive holding, that offsets from the priority reserve under the South Coast Air Basin SIP need not be subject to stringent validity requirements, leaves the way open for a loosening of offset requirements on certain categories of new stationary sources of emissions in the South Coast Air Basin, one of the most impacted in the nation, which can hardly afford a loosening of restriction. The good news, however, is that with the loosening of restriction, comes the potential for increased economic activity that might otherwise have been delayed or permanently foreclosed.
 

FAA Moves to Insulate Itself from Challenges to Clean Air Act Compliance in Airspace Redesigns

The Federal Aviation Administration (“FAA”) Reauthorization includes what can only be called an “earmark” that would allow the FAA to escape from compliance with the Clean Air Act on airspace redesign projects.

A proposed Amendment to the Reauthorization would allow FAA to categorically exclude from environmental review any NEXTGEN airspace redesign that will “measurably reduce aircraft emissions and result in an absolute reduction or no net increase in noise levels.” The Clean Air Act’s conformity provision, 42 U.S.C. section 7506, however, requires more for compliance than simply a “reduction in aircraft emissions.” Instead, the conformity rule provides, in pertinent part, that “[n]o department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated [in a State Implementation Plan].” A determination of compliance with a State Implementation Plan (“SIP”) in turn, requires: (1) an inventory of all emissions from an existing airport and surrounding emission sources, including stationary sources, such as auxiliary power units and generating facilities, and mobile sources other than aircraft such as ground support equipment and automobiles; and (2) a comparison of the project’s emissions with the “baseline” established by the inventory. That comparison will determine if the project will result in an exceedance of the benchmark emissions levels established in the SIP.
 

Currently, to escape from these requirements, the project proponent must perform a “Conformity Applicability Analysis” to determine if the project’s emissions will fall below the de minimis emissions levels established in Environmental Protection Agency (“EPA”) regulation 93.153(c).

The FAA Reauthorization, if enacted, will allow FAA to avoid all of its Clean Air Act responsibilities, and implement airspace redesign procedures that, even if they meet the state goal of reducing delay and thereby reducing aircraft emissions alone, will also increase airport capacity. Increased capacity, or increased number of operations passing through the airport, will potentially give rise to increased emissions impacts not offset by the initial calculation of emissions savings from delay reduction permitted by the Amendment.

In short, FAA is determined to avoid the same legal hurdle it faced in implementing the massive East Coast Airspace Redesign (which is currently being partially redesigned as ineffective). In a challenge to that action, County of Rockland, New York, et al. v. Federal Aviation Administration, et al., United States Court of Appeals for the District of Columbia Circuit, Case No. 07-1363, numerous public and private entities, including Delaware County, Pennsylvania and the State of Connecticut contested, among other deficiencies, FAA’s total absence of compliance with the Clean Air Act’s conformity provision. The District of Columbia Circuit Court of Appeals confirmed the absence of compliance, but found it to be a “nonprejudicial error,” because FAA had, in the Final EIS, performed an analysis of purported emissions reductions resulting from alleged delay reductions from the project.

FAA does not want to take the chance that another court may view complete failure to comply with Congress’ detailed enactment in the Clean Air Act as nonprejudicial error, and may require, instead, scrupulous compliance. The most effective avenue at this point is to contact your Senatorial representative and ask them to delete the onerous earmark from the House version of the Reauthorization.
 

Preemption Rears its Head Again in Federal Common Law and Nuisance Climate Change Challenge

A Federal Court has recently thrown open the door to potential civil challenges to both private and governmental sources of greenhouse gas emissions, based on the Federal common law of nuisance. For those who believe the Environmental Protection Agency (EPA) has acted too slowly in promulgating greenhouse gas regulation, civil actions are now possible at least in the Second Circuit. However, the Supreme Court may now scrutinize the Second Circuit’s decision. Based on a recent Fourth Circuit decision on a similar issue, the “Nine” may be tempted to follow in Moses’ footsteps and pare down the Second Circuit decision to apply only to greenhouse gas emissions from Federal projects.

 

To the surprise of all parties, and, no doubt, the glee of defendants, one of which is the Tennessee Valley Authority (TVA) (both a government agency and a private corporation), the United States Solicitor General joined with defendants in petitioning the United States Supreme Court for review of the Second Circuit’s decision in AEP v. Connecticut, et al., 582 F.3d 309 (2nd Cir. 2009). In that case, the governmental and environmental plaintiffs (plaintiffs include the States of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, the City of New York, The Open Space Institute, The Open Space Conservancy, and the Audubon Society of New Hampshire) had claimed, in two consolidated actions brought originally in the Southern District of New York that defendants’ (American Electric Power Company, American Electric Power Service Company, The Southern Company, XCel Energy, Inc., Synergy Corp. and TVA) combined annual emissions of 650 million tons per year of carbon dioxide contribute to global warming, and, thus, constitute a public nuisance. The District Court dismissed both lawsuits on the principal ground that the case presents a non-justiciable question of governmental policy.

The Second Circuit, however, overturned the District Court’s decision on, among other grounds: (1) plaintiffs’ claims were not preempted by statute or regulation; (2) in the absence of a statute and/or regulation completely occupying the field of climate change, the Federal common law of nuisance governs and plaintiffs had adequately stated a claim under it; and (3) the case did not present a non-justiciable Federal question.

One of the threshold questions for the Supreme Court must be whether the Congress or the Environmental Protection Agency (EPA) has, in fact, so completely occupied the field of climate change that there is no room left for the common law. Preemption exists where Congress has expressed its intent to occupy the entire field through specific statutes and/or regulations, or, over time, Congress or the agency granted authority to regulate in a specific area have so completely legislated and regulated the field that there is no room for state or local regulation. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973).

The Solicitor General argued in his brief that just such an occupation of the field had taken place since the District Court’s decision, where EPA has: (1) found that greenhouse gas emissions for motor vehicles “endanger the public health and welfare” and should be regulated under the Clean Air Act [endangerment finding], endangerment and cause or contribute findings for greenhouse gases under section 202(a) of the Clean Air Act, 74 Fed.Reg. 66,496 (December 15, 2009); (2) issued a final rule establishing CO2 emissions standards for automobiles, Light Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed.Reg. 25,324 (May 7, 2010); and (3) promulgated rules establishing emissions standards for stationary sources which have not yet been finalized, prevention of significant deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed.Reg. 31,514 (June 3, 2010).

If it accepts certiorari, the Supreme Court will most likely be looking at the somewhat inconsistent decisions of the Second and Fourth Circuits in this area. In a ruling in August, 2010, the Fourth Circuit in North Carolina v. Tennessee Valley Authority, ____ F.3d ___, 2010 W.L. 2891572 (4th Cir. July 26, 2010), considered the argument of plaintiffs in that case that emissions of the seven criteria pollutants (including VOC or NOx, Ozone, Sulfur Dioxide, Nitrogen Dioxide, Carbon Monoxide, PM10, PM2.5 ) from TVA installations, currently regulated by the EPA under the conformity provision of the Clean Air Act, 42 U.S.C. section 7506, and 40 C.F.R. section 93.150, et seq., constitutes a public nuisance. Predictably, the Fourth Circuit found, among other things, that substantial regulation had already been promulgated at the Federal level for the control of criteria pollutants from Federal projects, and that to allow public nuisance doctrine to supercede the comprehensive regulatory regimen would lead to a “Balkanization of clean air regulations and a confused patchwork of standards.” North Carolina, supra, 2010 W.L. 2891572 at 1. The Fourth Circuit case did not implicate greenhouse gas emissions, either from Federal or private sources.

If the defendants/petitioners in AEP are looking to the Fourth Circuit decision for the “conflict among Circuits” threshold to Supreme Court review, their reliance may be misplaced, because a gap in Federal regulations, and thus preemption, persists with respect to the regulation of greenhouse gases emitted by Federal projects such as TVA. As greenhouse gases are defined to include pollutants other than the seven criteria pollutants, greenhouse gas regulation may not be fully preempted by the conformity provision. Therefore, the decisions of the Second Circuit in AEP and of the Fourth Circuit in North Carolina may, in fact, be consistent, because while EPA has fully regulated criteria pollutants, it has not yet regulated greenhouse gases in the context of conformity.

In short, a window appears to remain open to bring challenges to greenhouse gas impacts from Federal projects under the Federal common law of nuisance. The window will remain open until EPA supplements its conformity regulation, 40 C.F.R. section 93.150, et seq., for greenhouse gases. This opportunity is, of course, cold comfort to the State of Connecticut and its co-petitioners who are hoping to obtain an avenue of relief from private as well as public emissions sources.

The EPA Announces Revisions to the California State Implementation Plan

The U.S. Environmental Protection Agency (EPA) has announced that, unless it receives adverse comments by the close of the comment period on August 13, 2010, it will approve revisions to the California State Implementation Plan (SIP). A SIP is an enforceable plan, developed at the state level and submitted to the EPA for approval, that explains how the state will attain and maintain National Ambient Air Quality Standards (NAAQS) set by the EPA for certain criteria pollutants. The Federal Clean Air Act (CAA) requires each state to develop and regularly update a SIP. SIPs are necessary and important. They play a key role in defining compliance with the CAA. The revisions proposed by the EPA are revisions to the Sacramento Metropolitan Air Quality Management District (SMAQMD) and South Coast Air Quality Management District (SCAQMD) portions of the California SIP. Approval of the revisions will enable California and the EPA to regulate volatile organic compound (VOC) emissions from “vanishing oils, rust inhibitors, plastic coatings, rubber coatings, glass coatings and aerospace operations.”  Information on how to submit comments on-line or by e-mail or by mail is available at http://www.regulations.gov. Comments should contain the docket number EPA-R09-OAR-2010-0514.

Senate Narrowly Turns Down Sen. Murkowski's (R-AK) Attempt to Overrule EPA's Greenhouse Gas Rules

After all of the debate was over, both on the Senate floor and in the press, it boiled down to a party line vote - again, with six Democrats crossing over to vote for the other side. As Jim Abrams of The Associated Press reported:

The defeated resolution would have denied the Environmental Protection Agency the authority to move ahead with [its] rules [requiring permits for greenhouse gas emissions (“the tailoring rule”)], crafted under the federal Clean Air Act. With President Barack Obama’s broader clean energy legislation struggling to gain a foothold in the Senate, the vote took on greater significance as a signal of where lawmakers stand on dealing with climate change.
 

Despite Sen. Murkowski’s widely publicized claims that the EPA’s “tailoring rule” “would be an unprecedented - unprecedented - power grab” and claiming that “millions of residential buildings, schools and businesses found in every town in America would shoulder the new costs from cutting carbon,” the EPA was very careful to exclude small sources of greenhouse gas emissions by setting the threshold for reporting at 25,000 tons per year.

Some pundits are now arguing that the vote signals support for the Kerry-Lieberman-Graham energy-climate bill, although that support might be in the form of a compromise. This vote may allow “green-leaning” Republicans to get back into the game and negotiate even greater provisions on behalf of their constituents in return for offering the decisive votes needed to support passage.

Also on the agenda is Sen. Jay Rockefeller’s (one of the six Democratic defectors) bill that would postpone the EPA’s authority under the Clean Air Act for two years. Presumably, this would give the Congress enough to time to work out a legislative fix for greenhouse gas emissions. This compromise measure has much broader support than the Murkowski resolution. Sen. James Webb, a Democratic Senator from Virginia who voted against the Murkowski resolution, said that he would support the Rockefeller legislation: “I do not believe that Congress should cede its authority over an issue as important as climate change to unelected officials of the Executive Branch.”

While the dust may be settling on the Murkowski resolution, EPA’s authority to regulate greenhouse gas emissions is still in up in the air.

Santa Monica and Logan Airport Health Studies are Targeting the Wrong Problem

Much has been made recently of the studies currently underway in areas around Boston Logan and Santa Monica Airports, aimed at determining the health impacts of those airports on surrounding populations.  While the aim is noble, and the information to be gained useful in structuring individual living choices, the result will have little or no impact on the operation of those airports. 

 

The airport health studies are apparently aimed at determining the etiology of increased rates of diseases such as Multiple Sclerosis, heart disease and emphysema within a 5-7 mile radius of the airports. Preliminary findings have determined increased rates of those and other ailments within those areas. So far, so good.

The problem with that approach, however, is two-fold. First, both airports are located within highly urbanized areas which give rise to multiple alternate sources of pollution such as freeways, and, in the case of East Boston, manufacturing and freight warehousing. It is unclear if the airport studies have screened out the effects of such intervening exogenous variables, as well as the impacts of other variables such as genetics, health care, eating habits, etc.

Second, even if their methodologies and conclusions are accurate, there is little to be accomplished with the result of the studies. There are no Federal laws or regulations that would mandate changes in the way airports operate because of the incidence of health problems disclosed by the studies.

A much more fruitful approach would be to devote the time and resources to an assessment of the airports’ “conformity” to their individual State Air Quality Implementation Plans (“SIP”). The Federal Clean Air Act prohibits any department, agency, or instrumentality of the Federal government from engaging in, supporting in any way or providing financial assistance for, licensing or permitting or approving any activity which does not conform to an “Implementation Plan.” 42 U.S.C. section 7506(c)(1). Therefore, if a methodologically sound study can establish that airport’s operations do not conform to the relevant SIP, the Clean Air Act unequivocally prohibits the FAA from further funding the airport. Loss of funding is a significant incentive to the mitigation of health and other impacts which are the fundamental concern of affected populations.

In short, the Boston and Santa Monica Airport health studies are aimed more at the emotions than at the solution. People living in close proximity to airports would be better served by studies like conformity analyses that provide them leverage in the struggle to reduce airport impacts.

 

EPA Sets New Standards for Sulfur-Dioxide (SO2) Emissions and Monitoring

On June 3, 2010, the U.S. Environmental Protection Agency [EPA] issued a final rule establishing lowered standards for acceptable levels of sulfur-dioxide [SO2] emissions. The new rule also changes the monitoring requirements for SO2. SO2 is one of six criteria pollutants which Federal agencies must evaluate under the EPA's General Conformity Rule, to determine whether emissions from a proposed project would conform to an approved CAA implementation plan. If a conformity analysis and determination indicate that a proposed Federal project would not conform to an applicable implementation plan, the project cannot be funded, licensed, permitted or approved.

SO2 is a highly reactive gas often linked to a number of respiratory system problems. People with asthma, children and the elderly are especially vulnerable to the effects of SO2. The largest sources of SO2 emissions are from fossil fuel combustion at power plants and other industrial facilities. The EPA established standards for SO2 emissions in 1971, and reviewed those standards in 1996, but chose not to revise the standards at that time.

Section 109(a) of the Federal Clean Air Act [CAA] directs the EPA Administrator to promulgate “primary” and “secondary” National Ambient Air Quality Standards [NAAQS] for pollutants for which air quality standards have been issued. One such pollutant is oxides of sulfur, as measured by SO2. Primary standards are aimed at protecting public health. Secondary standards are aimed at protecting public welfare, including the environment. The final rule addresses only SO2 primary standards. The EPA will address SO2 secondary standards as part of a separate review to be completed in 2012.

Under the new rule, allowable SO2 levels will be reduced from the current 140 parts per billion [ppb] averaged over 24 hours to 75 ppb measured hourly. The rule requires that monitors be placed where SO2 emissions impact populated areas, and new monitors must begin operating no later than January 1, 2013. The lower SO2 emissions level is designed to protect against short-term exposures ranging from five minutes to 24 hours because, according to the EPA, the science indicates that short-term exposures are of greatest concern. The EPA estimates that the new standards will prevent from 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year, and reduce health care costs by an estimated $13 billion to $33 billion annually.

The new rule will go into effect 60 days after publication in the Federal Register. States will have until June, 2011 to submit implementation plans to the EPA for approval. The final rule is available at www.epa.gov/air/sulfurdioxide/.

FAA to Announce Conformity Determination for Philadelphia's CEP Project

UPDATED May 5, 2010

The Federal Aviation Administration (FAA) announced in the April 23, 2010 Federal Register that it will release the Draft General Conformity Determination for the Preferred Alternative (Alternative A) for the Philadelphia International Airport (PHL) Capacity Enhancement Program (CEP) for public comment on April 27, 2010.  Ordinarily, the public has 30 days to submit comments on the Conformity Determination.  [We will update this BLOG when the comment due date in made public.]

The Preferred Alternative would extend PHL Runways 8/26 and 9R/27L to the east, and add a third parallel east-west runway.  Alternative A would also reconstruct and enlarge the terminal complex, increasing it from 120 to approximately 150 gates.

Federal law prohibits Federal agencies from approving or funding any project that is either: (1) not expressly exempt from the Environmental Protection Agency (EPA) General Conformity Rule; or (2) presumed to conform, until agencies have determined that the proposed project conforms to a State [Air Quality] Implementation Plan (SIP).

If you are concerned about the impacts the CEP Project might have on air quality in the PHL area, the Conformity Determination comment period provides both an opportunity and the means by which to express those concerns to the FAA.  The Final Environmental Impact Statement (FEIS) for the CEP Project is expected to be released in late August, 2010.

ADDED May 5, 2010:

Comments on the General Conformity Determination for the Philadelphia International Airport (PHL) Capacity Enhancement Program must be postmarked to Sue McDonald, Environmental Protection Specialist, Federal Aviation Administration, Harrisburg Airports District Office (ADO), 3905 Hartzdale Drive, Suite 508, Camp Hill, PA  17011 no later than May 27, 2010.  The General Conformity Determination is available at http://www.phl-cep-eis.com.

What Does EPA's Finding that Greenhouse Gas Emissions Endanger Public Health and the Environment Mean to Business?

When the U.S. Environmental Protection Agency issued its final finding that emission of six greenhouse gases endangered the public’s health and the environment because of their effect on climate change, the business community wondered how it should respond to the news.  At first glance, there seems to be blinding maze of legal and policy issues that will affect business decisions.  Although far from clear, there is a way out of the maze – although businesses with significant greenhouse gas emissions should be prepared to tackle the important issues that the Endangerment Finding raises.

Businesses Need to Take a Deep Breath (Irony Intended)

The road to the endangerment finding began in 2007, when the U.S. Supreme Court decided in Massachusetts v. EPA that carbon dioxide and other greenhouse gases constituted “air pollutants” under the Clean Air Act.  To most savvy businessmen this was a clear signal to start planning how their businesses would cope with the establishment of limits on emission of greenhouse gases.  Although the Bush Administration EPA successfully sat on the issue, when the Obama Administration took office, most companies recognized that an endangerment finding would top the EPA’s list of major environmental actions.  Thus, EPA’s announcement this past April of its proposed finding and its announcement of the final endangerment finding should have come as no surprise to anyone who has been monitoring this issue.

The key thing for businesses to remember is that the endangerment finding by itself does not regulate the emission of greenhouse gases from any source, large or small.  That being said, it does have a direct impact on mobile sources (because of section 202(a) of the Clean Air Act), with the EPA planning on issuing its final “light-duty vehicle” greenhouse gas emissions rule some time in Spring 2010.

When the light-duty vehicle rule is finalized, the GHGs subject to regulation under that rule (i.e., the six greenhouse gases identified in the Endangerment Finding) would become immediately subject to regulation under the PSD program, meaning that from that point forward, prior to constructing any new major source or major modifications that would increase GHGs, a source owner would need to apply for, and a permitting authority would need to issue, a permit under the PSD program that addresses these increases. Similarly, for the Title V operating permit program, it would mean that any new or existing source exceeding the major source applicability level for those regulated GHGs, if it did not have a title V permit already, would have 1 year to submit a title V permit application.

Recognizing this incidental effect, the EPA proposed a “tailoring rule” on September 30, 2009.  In the Tailoring Rule, EPA proposed to set a new threshold of 25,000 metric tons of GHG emissions to define when Clean Air Act permits under the New Source Review and Title V operating permits programs would be required.  The proposed thresholds would “tailor” these permit programs to limit which facilities would be required to obtain permits and would cover nearly 70 percent of the nation’s largest stationary source GHG emitters—including power plants, refineries, and cement production facilities, while shielding small businesses and farms from permitting requirements. Thus, businesses that emit less than 25,000 metric tons of GHG and businesses that currently have a Title V operating permit will not, for the most part, be covered by the Tailoring Rule.

Should Businesses Make Voluntary Reductions in Greenhouse Gas Emissions?

So what should companies do in the meantime?

Many businesses have been evaluating their carbon footprint over the past few years (particularly since the Massachusetts v. EPA decision) and have been looking at ways to reduce GHG emissions. For many companies energy is a cost, and in some cases, greenhouse gases may be a lost resource.  By increasing efficiency, costs are reduced and the business operates better.  For example, the aviation industry loves to trumpet how it is getting “greener,” because it is reducing GHG emissions.  However, that greening has come about by reducing fuel consumption, which became a necessity when fuel prices spiked because fuel costs represent a huge percentage of the aviation industry’s costs.  The result?  Increased fuel efficiency=fewer emissions=reduction in emissions of GHG, with a reduction in fuel costs to top it off.  Moreover, there are ways that would reduce GHG emissions and accrue tax benefits, such as cogeneration or combined heating power.  These types of programs that reduce GHG emissions and accrue a direct benefit to the company’s bottom line should be pursued regardless of the regulatory environment.  The caveat would be that businesses should check in with their environmental law attorney to see if there are any carbon banks or carbon credit systems set up that they could participate in order to get “credit” for any reduction in GHG emissions.

Outside of those programs, however, caution should be taken with respect to taking on projects that would reduce GHG emissions, but represent a net cost to the business.  Many businesses are taking a “wait and see” attitude, relying on their environmental law attorneys to monitor developments, report to them about those developments and assist them in develop strategies and manage the risk.  It is only when the regulatory regime is in place that businesses can assess what changes need to be made to their processes and to their equipment in order to comply with the regulations.  Particularly when the costs to comply are substantial, businesses are going to want to wait until the requirements become fixed before they undertake a far-reaching GHG emission reduction program.

Congressional Outlook:  Who Knows What They Are Up To?

The progress in Congress on new Climate Change legislation is an additional reason for businesses to sit tight.  Since Monday’s Endangerment Finding, most business and industry groups have stated that they would much prefer either one of the bills currently being considered in Congress to regulation by the EPA.  The primary reason for this is the fact that both the Boxer-Kerry bill and the Waxman-Markey bill have “cap-and-trade” provisions, which, although excoriated by the Republicans, are much better for businesses than an EPA-centric “command-and-control” regulatory regime.  A good example of this change of heart is Sen. Mark Pryor (D.Ark.), who was reported as being more willing to consider a cap-and-trade proposal now that the EPA has issued its endangerment finding.

At the same time, the failure to come up with a bill for the President’s approval prior to the Copenhagen Climate Change Conference, the release of the hacked e-mails from East Anglia University’s Climate Research Unit, and the inexorable march of time have led to the Senate going back to the beginning.  Indeed, Sens. Kerry, Lieberman and Graham have put forth a new outline for Climate Change legislation. Thus, it is unlikely that Congress will have anything to offer until after the EPA has finalized the light-duty vehicle regulations, and perhaps after the Tailoring Rule is finalized.

Conclusion: Now Is The Time for Self-Assessment

The upshot of the Endangerment Finding and, for that matter, EPA’s regulation of GHG emissions, is that now would be a good time for businesses to assess just how much GHG emissions they produce.  The potential impact of EPA’s regulation of GHG emissions will be felt by companies that have not been traditionally required to examine their exposure to Clean Air Act regulation.  To state that there is not much clarity as which companies will be affected by the EPA’s Tailoring Rule, for example, is an understatement.  Even the EPA recognizes in its rule that it will need to fine tune it over the years so that does what it is supposed to do.  Thus, the more businesses know about their operations and the amount of GHG they emit, they better they will be able to assess their place in just about any scenario that may come up.

Seeking to Overturn the Dismissal of its Challenge to the East Coast Airspace Redesign, Delaware County, Pennsylvania, Files Petition for Certiorari to the U. S. Supreme Court

On Tuesday, November 17, 2009, Chevalier, Allen & Lichman filed a Petition for Writ of Certiorari to the United States Supreme Court on behalf of its client County of Delaware, Pennsylvania (“Delaware”). The Petition asks the Court to reverse the decision of the D.C. Circuit Court of Appeals in County of Rockland, New York, et al. v. Federal Aviation Administration, et al., and remand to the Federal Aviation Administration (“FAA”) for a decision consistent with Congress’ intent and instruction in the Conformity Provision of the Clean Air Act, 42 U.S.C. § 7506.

Delaware argues that the FAA violated the Clean Air Act when, as the Court of Appeals acknowledged, the FAA “did not directly calculate the level of emissions” resulting from a redesign of approach and departure paths at five major airports across five states with five separate State Implementation Plans in the northeastern United States. The Court of Appeals went further and found that FAA “did not need to quantify the reduction [in emissions] in order to conclude the redesign was exempt from a conformity determination,” and assuming FAA’s omission was error, Petitioners had failed to prove the error harmful.

Delaware responds in its Petition that FAA’s failure to follow the clear mandate of the Clean Air Act to calculate emissions; do so within and with respect to each State’s Implementation Plan (“SIP”), 42 U.S.C. § 7506; or, in the alternative, apply the regulations promulgated by the Environmental Protection Agency for determining whether a project is subject to a de minimis exemption from conformity, 40 C.F.R. § 93.153(c) and (b), is both error and harmful, because FAA’s failure prejudices Delaware’s “substantial rights” in the expectation that Federal agencies will comply with the express mandates of Congress in statutes that, like the Clean Air Act, require specific results.

Finally, Delaware argues that the Court of Appeals’ decision not only threatens its substantial rights in the benefits granted by Congress, but also grants a “free pass” to all Federal agencies to rewrite the rules for compliance with the Clean Air Act.

A separate Petition for Writ of Certiorari was also filed by co-Petitioners in the underlying action State of Connecticut and Rockland County. Because the Supreme Court receives a vast number of Petitions, there is no set time frame within which Delaware expects to be notified of the Court’s decision. Obviously, however, Delaware believes that absent a favorable determination from the Supreme Court, its ability to exercise its responsibilities to ensure the public health and welfare under Pennsylvania law, as well as the individual rights of its citizens, will be seriously, and, perhaps, permanently jeopardized.

D.C. Circuit Court of Appeals Decides Against Challenge to East Coast Airspace Redesign

In a per curiam Abbreviated Disposition that will not be published, the U.S. Court of Appeals for the District of Columbia Circuit summarily denied 12 separately-filed petitions for review that questioned the legality of the Federal Aviation Administration’s Environmental Impact Statement for its East Coast Airspace Redesign. The matter, Rockland County v. Federal Aviation Administration, brought 12 lawsuits together that represented a multitude of petitioners from Delaware, Pennsylvania, New Jersey, New York, and Connecticut. The Court kicked all of the citizens’ complaints about the effect the Airspace Redesign would have on their environment to the curb, deferring to the FAA’s analysis.

The Court reached this conclusion without addressing many of the arguments that the Petitioners presented in their briefs and at oral argument. First, with respect to Petitioners’ argument that the EIS violated the National Environmental Policy Act, the court simply stated that it is deferring to the FAA’s reasoning that they did everything they needed to do. Not mentioned in the Court’s cursory and truncated analysis is the fact that the FAA has said that it will not implement the Night Routing part of the EIS’ “Preferred Alternative,” and the effect that failure will have on the environmental impacts of the Airspace Redesign.

Second, the Court also deferred to the FAA in deciding that the EIS sufficiently took into account the state and local parks and parklands that would be affected by the Airspace Redesign. The Court, states that the Petitioners should have engaged in a “battle of the experts” and should have “impugn[ed] the agency’s screening methodology.” Disposition, p.8. In most cases, impugning an agency’s methodology is looked upon in great disfavor by a court.

Finally, the Court decided that the Airspace Redesign fell within the de minimis exception of the Clean Air Act, thereby releasing the FAA from any requirement to perform any type of analysis as to the impact the project will have on the surrounding area’s air quality programs. The Court admitted that the FAA did not follow the procedures set forth by the EPA in 40 CFR 93.153, but the “fuel burn analysis” that the FAA did create was sufficient. This was true, the Court concluded, despite the fact that the “fuel burn analysis” was devoid of any mention of criteria pollutants or indirect emissions as required by EPA’s regulation 40 CFR 93.153. The Court went on to hold that any error that the FAA committed in not following the required air quality procedures was harmless error.

It is obvious why the Court does not want this decision published. It is rudimentary and lacking in analysis of many of the arguments presented by the Petitioners. Moreover, it is cursory in statements of law and fact. For example, on p. 10 of the Disposition, in a footnote, the court states:

The petitioners also argue that the fuel burn analysis failed to show the redesign will reduce emissions in all relevant nonattainment and maintenance areas, see 40 C.F.R. 93.153(b), but that argument is not properly before us because the petitioners failed to raise it until their reply brief, Sitka Sound Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1181 (D.C. Cir. 2000).

In fact, the Petitioners had raised that issue in their opening brief, not once, but twice. See, Petitioners’ Joint Brief, pp. 88 and 93.

In the end, it is sad to see that a Court that prides itself on having many of its members become Supreme Court Justices, hide behind a per curiam decision that is so superficial and so careless. The Petitioners now have 45 days to decide whether to seek a rehearing or a rehearing en banc.

Other Articles on the subject:

Other posts on this blog about the Airspace Redesign:

EPA Finally Issues Endangerment Finding for Six Greenhouse Gases, Including Carbon Dioxide

Over two years ago, on April 2, 2007, the Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), directed the EPA Administrator to determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision.  Finally, after two years and much hand-wringing, EPA Administrator Lisa Jackson issued her proposed finding that carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride may endanger public health or welfare.

In actuality, the EPA proposed two findings:  (1) an endangerment finding, that the six GHG endanger public health and welfare; and (2) a “cause and contribute finding” that the combined emissions of carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these key greenhouse gases and hence add to the threat of climate change.

EPA characterizes its proposed Endangerment Finding as follows:

This is not a close case in which the magnitude of the harm is small and the probability great, or the magnitude large and the probability small. In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

The EPA, however, was careful to walk a fine line between complying with the dictates of Massachusetts and actually regulating GHG.  While this proposed rule does not actually regulate GHG,  it does propose defining greenhouse gases as “air pollutants” under the Clean Air Act. EPA proposes defining the six GHG as a single pollutant, rather the defining them individually - similar to the approach the EPA took with ozone years ago. EPA explained its decision as follows:

It is the Administrator’s judgment that this collective approach for the contribution test is most consistent with the treatment of greenhouse gases by those studying climate change science and policy, where it has become common practice to evaluate greenhouse gases on a collective CO2-equivalent basis

Although the EPA usually issues emission control standards concurrently with an endangerment finding, in this case, the EPA indicated that the emission standards would be issued “several months from now.”   This bifurcation of the normal process has been taken by observers to mean that these rules are meant to goad the Congress into action, rather than a serious proposal that EPA regulate GHG.  Indeed, the EPA’s Press Release on the Endangerment finding specifically stated that “[n]otwithstanding this required regulatory process, both President Obama and Administrator Jackson have repeatedly indicated their preference for comprehensive legislation to address this issue and create the framework for a clean energy economy.”

And Congressional leadership seems ready to oblige.  Rep. Edward Markey (D.Mass.), Chair of the Energy and Environment Subcommittee, had this to say about the EPA’s Endangerment Ruling:

This decision is a game-changer. It is now no longer a choice between doing a bill or doing nothing. It is now a choice between regulation and legislation. EPA will have to act if Congress does not act.

Markey and Rep. Henry Waxman (D-Calif.) have introduced the American Clean Energy and Security Act of 2009 (ACES) to set up a system for reducing emissions from all sources and creating a financial incentive for companies to stay within emission limits.   See, “U.S. House Energy and Commerce Committee Releases Draft Climate Change Act,” posted April 2, 2009.  Waxman wants to pass the bill from his Energy and Commerce Committee by the end of May, but its fate is uncertain in the Senate.

Aircraft and other aviation sources seem to have received a pass with respect to these regulations:

EPA has received a petition under the Act to consider the regulation of 64 aircraft emissions (water vapor and NOx) that lead to formation of contrails (in addition to aircraft greenhouse gas emissions), and EPA plans to evaluate this issue further. At this time, the Administrator is not proposing to include aircraft-related contrails or emissions that are not greenhouse gases within the definition of air pollution for purposes of section 202(a).

This does not mean, however, that once the emission control standards are promulgated (if they are promulgated), aviation sources will not also be regulated.  Likewise, the Waxman-Markey bill may affect aviation sources as well.

A 60-day comment period will follow publication of the proposed rule in Federal Register, which has not yet occurred.  There will be public hearings in Arlington, Virginia, and Seattle, Washington in May, 2009.   Click on Continue Reading at the bottom of this post for details about written comments and public hearings.

Previous posts on this subject:

Written Comments

Written comments on the proposed finding (Docket ID No. EPA-HQ-OAR-2009-0171) may be submitted by using the following instructions:

Written comments should reference Docket ID No.  EPA-HQ-OAR-2009-0171.

Public Hearings

EPA has proposed two public hearings for these proposed findings.  EPA has requested those who wish to attend or give public comments, to register on-line in advance of the hearing.

EPA Resources

 

Petitioners File Reply Brief in East Airspace Redesign Case

On Friday, March 6, 2009, the Joint Petitioners in the East Coast Airspace Redesign case now pending in the D.C. Circuit Court of Appeals, filed their Reply Brief, arguing that the FAA failed to comply with 4(f) of the Department of Transportation Act, the Clean Air Act and NEPA.

The Reply Brief takes the FAA to task for failing to consult with the state and local authorities regarding the tremendous impact that the Airspace Redesign will have on "4(f) properties," that is, state and local parks, and wildlife preserves.  It also points out that the FAA is in violation of the Clean Air Act, because it failed to establish that the Airspace Redesign would conform with the Clean Air Act.  Finally, the Reply Brief, argues that the FAA violated NEPA by not following its own regulations concerning aircraft noise in assessing the noise impacts of the Airspace Redesign.

Briefing for the case is now completed and oral argument is scheduled for 9:30 a.m.. on May 11, 2009, in front Judges Sentelle, Ginsburg, and Randolph at the E. Barrett Prettyman United States Courthouse, 333 Constitution Ave. NW, Washington, D.C..  Senators Dodd (D - Conn.) and Specter (R - Pa.) filed a amicus curiae brief supporting the Petitioners' Petition for Review to have the Airspace Redesign vacated and remanded back to the FAA.  The New Jersey Attorney General, Anne Milgram also filed an amicus brief in support of the Petitioners.

Other Posts regarding this Litigation:

 

D.C. Circuit Court of Appeals Denies Petition for Review of FAA's "Presumed to Conform" Rule

On February 3, 2009, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for review of the Federal Aviation Administration’s (FAA) “presumed to conform rule.”  72 Fed.Reg. 41565 (July 30, 2007).  

Under the “presumed to conform rule” the FAA can avoid its obligation under the Clean Air Act to assure that its projects “conform to an implementation plan after it has been approved or promulgated under section 7410" of the Clean Air Act.  42 U.S.C. 7506(c).  The FAA used its presumed to conform rule as one of the justifications for its failure to perform a conformity determination in the East Coast airspace redesign.

Although the Court found that the Petitioners did not have standing to bring the petition for review, the petition was successful in at least a couple regards.  First, the decision was based on the predicate issue of standing, and did not reach the merits of the Petitioners’ argument that the FAA had not complied with federal law in the promulgation of its presumed to conform rule.  Thus, that argument may be raised by the Petitioners in the East Coast airspace redesign litigation now pending before the D.C. Circuit.

Second, by bringing this case, Petitioners exhausted their legal remedies with respect to a "facial" challenge to the FAA's presumed to conform rule.  The opinion in this case leaves the validity of the FAA’s presumed to conform rule on the table, ripe for the court’s consideration in the airspace redesign litigation.

That being said, the court’s opinion is not without error.  For example, the court states that the “Petitioners challenge two recent FAA actions in which the FAA altered the air traffic control activities at airports . . .” Opinion, p.4.  However, that, in fact, is not the case.  As stated in the Petitioners’ brief, the issue was whether the FAA followed the rules set out by the EPA in 40 CFR 93.153 in promulgating its presumed to conform rule.  By confusing the Petitioners’ facial challenge of the FAA’s presumed to conform rule for an “as applied” challenge, the court mistakenly applied incorrect facts and law to the matter that resulted in error in the outcome.

You can read the pleadings in this matter right here:

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.

Other blog posts on this topic:

New Jersey Attorney General Files Amicus Brief in Airspace Redesign Litigation

On September 10, 2008, Anne Milgram, the New Jersey Attorney General filed an amicus curiae brief in support of the Petitioners in the Airspace Redesign litigation currently pending in Court of Appeals for the District of Columbia Circuit.  In it, the New Jersey Attorney General emphasizes the impact that the Airspace Redesign will have on New Jersey's air quality and the FAA's abject failure to address those air quality issues.

The amicus brief "concurs with and joins" in Petitioners' argument that the Airspace Rdesign is not exempt from the Clean Air Act or EPA regulations, that FAA's presumption of conformity for air traffic control procedures is not applicable to the Airspace Redesign; and that neither FAA's regulations nor the record in this matter supports FAA's "fuel burn study."  The amicus brief goes on to state that the issues that face New Jersey as a result of the FAA' decision, including inhibiting New Jersey's ability to comply with the NAAQS under the Clean Air Act.

The brief also mentions that the FAA violated the National Environmental Policy Act (NEPA) because the Airspace Redesign was approved on the basis of an inadequate environmental impact statement.  In particular, the brief argues that the EIS failed "to adequately inform the public of the noise impacts of the Airspace Redesign."

This brief, coupled with the brief that Sen. Arlen Specter (R-Pa.) and Sen. Christopher Dodd (D-Conn.) filed on September 5, 2008, provide the court with additional reasons why the EIS must be remanded back to the FAA for further consideration.

FAA's Presumed to Conform Rule Will Affect Communities Around Airports

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.

 

The EPA promulgated regulations in 1993 detailing how the Federal agencies should go about proving their actions conform. Included in those regulations is a provision that, until 2007, had not been used by any Federal agency. That provision (40 C.F.R. sec. 93.153(f)) allows a Federal agency, under certain conditions, to list a series of activities it deems “presumed to conform.” Intended to be used for actions in which the emissions are minimal, such as land transfers and or transactional actions, the FAA in included in its 2007 “presumed to conform” rule, “air traffic control activities and adopting approach, departure and enroute procedures for air operations.” What this rule does is eliminate the need for the FAA to provide the communities around airports with data about the impact actions like the airspace redesign in the Philadelphia/New York/Newark area will have on the area’s air quality. Without the FAA performing a conformity determination, there will be no air quality data available to the communities around airports, despite the growing research that shows that aircraft emissions contribute to problems in air quality.

The County of Delaware, located at the end of the runways of Philadelphia International Airport, has petitioned the U.S. Court of Appeals in Washington D.C. to put an end to the FAA’s rule, at least with respect to changes in air traffic control procedures. You can read the pleadings in this matter right here:

Oral argument in this matter will be held in Washington D.C. on October 7, 2008.

In addition, the EPA is revising the regulations governing conformity. They expect to issue new regulations in early 2009. A group of cities and concerned companies filed comments on the EPA’s proposed revisions and asked the EPA to eliminate the “presumed to conform” rule from the regulations.

Update on East Coat Airspace Redesign Litigation

As is well known, the FAA's Record of Decision on September 5, 2007 (and subsequently amended on October 5, 2007) regarding the NY/NJ/PA Airspace Redesign generated a host of litigation.  Twelve Petitions for Review were filed in three different Federal Circuit Courts of Appeal. Seven petitions from counties, municipalities and organizations in Pennsylvania, Delaware and New Jersey were filed in the Third Circuit, located in Philadelphia. Three petitions from the State of Connecticut as well as towns and groups of towns in Connecticut were filed in Second Circuit, located in New York. And two petitions from one county in New York and a New York organization were filed in the D.C. Circuit. Because the first petition filed was in the D.C. Circuit, the Court, by  orders on February 14, 2008 and on March 10, 2008, consolidated all of the petitions in the D.C. Circuit.

Since all of the petitions were consolidated, the D.C. Circuit requested that all of the petitioners devise a proposal as to the format for briefing on this matter. Pursuant to the D.C. Circuit Court of Appeals'
March 18, 2008, Order, on April 17, 2008, all of the Petitioners filed a Joint Proposal for Briefing with the court.  Following the court's strict guidelines, the Petitioners suggested to the court that they file one brief covering all of the issues presented by all of the Petitioners that is substantially longer than a normal brief.  Contained in the one brief, however, will be the specific complaints of each of the petitioners. In addition, the Petitioners set out a briefing schedule that took into account the fact that twelve groups of attorneys would be working on a single brief. Thus, the Petitioners suggested that their brief be due on August 1, 2008, the FAA’s brief to be due on October 31, 2008, and the Petitioners’ Reply brief be due on December 19, 2008. These dates and the format of the briefs were agreed to by the Department of Justice, who is representing the FAA in all of the matters.

Airspace Redesign May Not Decrease Fuel Consumption For The Airlines As The FAA Claims

In both the Record of Decision (ROD) and the Final Environmental Impact Statement (FEIS) for the New York/New Jersey/Philadelphia Airspace Redesign, the FAA states that there will be a decrease in emissions from aircraft as a result of the airspace redesign because the aircraft will burn less fuel.  To support this theory, the FAA relies upon a cobbled-together "Fuel Burn Analysis" that is nowhere to be found in any of the FAA's orders or procedures.

However, even with the ginned-up fuel burn analysis, it is now becoming apparent that there may be no savings in fuel to be derived from instituting the Airspace Redesign's preferred alternative.  Using the information provided in the Appendix R of the Final Environmental Impact Statement and the TAAM output files that were included in the Administrative Record as document 9285, Clean Air Act consultant Dan Meszler, of Meszler Engineering Services, concluded that the "Preferred Alternative" would seemingly increase fuel consumption.

On the following page is an excerpt from Mr. Meszler's Report, along with a table showing the differences between fuel consumption reported in the FEIS and fuel consumption based on the TAAM data that was included in the Administrative Record.

EXCERPT FROM MESZLER ENGINEERING'S FEBRUARY 18, 2008 REPORT:

"There is no way to know whether [the files included in Administrative Record document 9285] are associated with an average demand day (consistent with the Appendix R fuel burn analysis) or a high demand day (consistent with the Airspace Redesign operational analysis).  I assume that they reflect the latter, but they are still useful for evaluating the potential significance of the fuel burn corrections.  Additionally, since most of the modeling scenarios reflected in the TAAM output files represent simulations of greater than 24 hours duration (some cover a period as long as 48 hours), I extracted TAAM fuel burn data for only the first 24 hours of each simulation.  [The following table] presents the resulting data.

Estimated Aircraft Fuel Consumption (kg/day, unless otherwise specified)

FEIS Appendix R Table 2.1 (Corrected)  24 Hour TAAM Output (High Capacity)  24 Hour TAAM Output (Low Capacity) 

No Action 2011  IA w/ICC 2011  Benefit 2011  No Action 2011  IA w/ICC 2011  Benefit 2011  No Action 2011  IA w/ICC 2011  Benefit 2011 
EWR  6,640,480 6,583,252 57,229 8,231,348 8,433,572 -202,224 8,270,887 8,584,092 -313,205
PHL  4,743,119 4,686,764 56,355 5,059,038 5,093,444 -34,406 5,100,858 5,107,540 -6,682
JFK  8,328,735 8,287,755 40,980 7,192,802 7,199,415 -6,613 7,254,175 7,264,835 -10,660
LGA+HPN  2,874,567 2,841,432 33,135 4,119,612 4,150,003 -30,391 4,157,711 4,216,465 -58,754
Internals  57,175 42,943 14,232 0 0 0 0 0 0
ISP  278,473 265,729 12,745 0 0 0 0 0 0
TEB+MMU  527,269 537,024 -9,755 1,122,974 1,137,327 -14,353 1,162,440 1,149,415 13,024




Total  23,449,818 23,244,898 204,920 25,725,774 26,013,761 -287,987 25,946,071 26,322,348 -376,277
Pct. Change 

0.90%

-1.10%

-1.50%
Gallons/day 

66,436

-93,367

-121,991
 
1. The total fuel consumption in FEIS Appendix R Table 2.1 is reported to be 16,809,338 for the no action alternative and 16,661,646 for the IA with ICC alternative. These values erroneously exclude EWR and have been corrected for this table. The total reported benefits in FEIS Appendix R Table 2.1 were correct and are, therefore, unchanged in this table.      
2. The gallons per day benefit reported in FEIS Appendix R is 66,840. The value reported in this table is marginally lower and the difference is undoubtedly the result of differing conversion factors. For this table, it was assumed that the density of aviation fuel was 6.8 pounds per gallon and that there are 2.2046 pounds per kilogram. The specific assumptions employed in FEIS Appendix R are not reported.      
3. The TAAM data reported in this table are based on the only TAAM output files included in the Administrative Record. It is suspected that the files are for high demand scenarios (as opposed to average demand scenarios). The only adjustment made to the TAAM output is that only fuel consumption data for the first 24 hours of each TAAM scenario are considered. Since the context of these data in this evaluation are solely to demonstrate basic fuel consumption relationships and not absolute values, the use of high demand scenarios should be irrelevant.      
4. Negative benefits signify a net increase in fuel consumption.      


The first three data columns of the table simply reproduce the fuel burn data presented in Table 2 of Appendix R.  As indicated, Appendix R estimates a modest fuel consumption decrease of just under 1 percent for the preferred IA w/ICC (Integrated Airspace with Integrated Control Center) alternative.  This impact derives from the basic fuel consumption estimates of TAAM combined with EDMS and fuel-flow integrator adjustments.  The next three data columns depict corresponding data derived from the high capacity runway configuration TAAM output files of Administrative Record document 92 85.  The rightmost three data columns depict corresponding data derived from the low capacity runway configuration TAAM output files of Administrative Record document 9285.

The results indicate that the adjustments to the basic TAAM-estimated fuel consumption may provide the entire rationale for concluding that fuel consumption will be reduced under the preferred alternative.  As indicated, the basic TAAM scenarios preduct fuel consumption increases of 1.1 percent under the high capacity runway configurations and 1.5 percent under the low capacity configurations.  The predictions are directly consistent across all airports (i.e., all show increases), but are most pronounced at EWR, which accounts for 70-85 percent of the total change."