Clean Air Act

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On June 28, 2024, the United States Supreme Court sent a long, cold shiver through the ranks of Federal agencies in its landmark decision in the case of Loper Bright v. Raimundo, No. 22-451. In that decision, the Court defied the long-accepted principal of “Judicial Deference” to the challenged decisions of Federal agencies to which…

On June 4, 2020, President Trump issued an Executive Order, “EO On Accelerating the Nation’s Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities” (“EO”) for the expressed purpose of forestalling “the likelihood of a potentially protracted economic recovery with persistent high unemployment,” EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes “a national emergency that posed a threat to our national security.” EO, Sec. 1.

In order to “facilitate the Nation’s economic recovery,” EO, Sec. 2, the EO seeks to “speed infrastructure investments,” EO, Sec. 2, that will “strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, “expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.

All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”).Continue Reading Executive Order Presents a Trade-Off Between Infrastructure Investment and Environmental Regulation

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).  

The change has inspired significant controversy throughout the country, but most particularly in Southern California which purportedly has the nation’s worst air quality and has already failed to meet previous ozone standards.  The issues arise out of the likelihood that the new standards will require steep emissions cuts falling most heavily on the transportation sector including trains, trucks, ships and, not least, aircraft.  

Continue Reading Airlines Will Be Affected by New Federal Ozone Standards

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”).

More specifically, CARB’s failure to submit constitutes a violation of the general provisions of the Clean Air Act (“CAA”), § 110(a)(2)(D)(i)(I) which requires that CARB submit a SIP revision to comply with the implementation, maintenance and enforcement provisions related to new or revised NAAQS within three years after the promulgation of the revised NAAQS; and that such plan contain adequate provisions to prohibit emissions from the state that will contribute significantly to nonattainment of the NAAQS (“Prong 1”), or interference with maintenance of the NAAQS (“Prong 2”), in any other state.  The final rule implementing the “Finding of Failure” transfers to EPA the obligation to promulgate a Federal Implementation Plan (“FIP”) to address the interstate transport requirements, within 24 months.
 
The issue has come to prominence as a result of the federal/state partnership that is the foundation of the CAA, see 42 U.S.C. § 7401(a)(3) and (4), giving EPA the power of approval over locally developed plans.  

Continue Reading California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government

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.  
 

Continue Reading EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines

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. 
 Continue Reading High Court Goes a Second Round with Environmental Protection Agency Over Greenhouse Gas Emission Regulations

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

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…

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.Continue Reading Legislature Asked to Grant CEQA Relief for Rail Projects

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.
 Continue Reading The D.C. Circuit Court of Appeals Reconfirms the Bar of Standing in the Federal Courts