On November 12, 2024, the District of Columbia Circuit Court of Appeals (“DC Circuit”) took a dramatic step on the rocky road to ensuring Federal agency compliance with the requirements of the National Environmental Policy Act (“NEPA”). In its opinion, deciding the fate of the Airspace Management Plan governing flights over four National Parks in
Environmental Protection Agency (EPA)
Is H.R. 6050 The Best That Congress Can Do?
It is likely that the public may be somewhat disappointed with Congress’ latest effort to ameliorate the impacts of airport noise on underlying populations. On November 18, 2021, Adam Smith, Member of the House of Representatives from Washington State, introduced the Aviation Noise and Emissions Act, H.R. 6050, a Bill intended to “develop pilot grant programs through the Environmental Protection Agency to research and collect data on aircraft and airport noise and emissions and to use such information and data to develop a mitigation strategy, and for other purposes.” H.R. 6050, p. 1. At its foundation, the Bill calls for a “3-year pilot grant program with eligible entities to measure noise and emissions, including greenhouse gases, particulate matter, ultrafine particles, and other toxic pollutants, in communities near airports or air flight pathways using sophisticated methods and technology that allow tracing of noise and emissions to specific sources . . .,” H.R. 6050, paragraph 2.a., including identifying the primary recipients of such noise such as specific neighborhoods, structures, or impacted areas.
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Airlines Will Be Affected by New Federal Ozone Standards
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).
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California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the Federal Government
On October 24, 2014, the Environmental Protection Agency (“EPA”) published its final rule documenting the failure of the California Air Resources Board (“CARB”) to submit a State Implementation Plan (“SIP”) revision containing measures to control California’s significant contribution to the nonattainment, or interference with maintenance, of the 2006 24 hour fine particulate matter (“PM2.5”) National Ambient Air Quality Standards (“NAAQS”) in other states (“Interstate Transport SIP”).
EPA Challenged to Issue Endangerment Finding and Rule Governing Greenhouse Gas Emissions from Aircraft Engines
Two environmental organizations have again taken the United States Environmental Protection Agency (“EPA”) to task for failing in its mandatory duty to determine whether greenhouse gases from aircraft engines cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (“Endangerment Finding”), and, if so, to propose and adopt standards to limit those emissions. See Clean Air Act (“CAA”), 42 U.S.C. § 7571(a)(2)(A) (also referred to as “Section 231”).
Santa Monica Airport Commission’s Proposal to Limit Aircraft Access by Limiting Emissions is Foreclosed by Federal Law
The Santa Monica Airport Commission has recently made a proposal to limit access of certain aircraft to Santa Monica Airport by limiting emissions allowable from those aircraft. The proposal may be public spirited in its intent, but shocking in its naiveté with respect to the preemptive authority of federal law and specifically the federal authority over emissions from aircraft engines.
The Administrator of the Environmental Protection Agency (“EPA”) is granted by Congress exclusive jurisdiction over the creation and enforcement of regulations governing emissions from aircraft engines. “The Administrator shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in his judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health and welfare.” 42 U.S.C. § 7571(a)(2)(A) and (a)(3). There are, however, some limits on EPA’s authority.
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EPA Extends Public Comment Period for “Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units”
On March 6, 2014, the Environmental Protection Agency (“EPA”) announced the 60-day extension of the comment period for the January 8, 2014 proposed “Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources: Electric Utility Generating Units” and the February 26, 2014 notice of data availability soliciting comments on the provisions in the Energy Policy Act of 2005.Continue Reading EPA Extends Public Comment Period for “Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources: Electric Utility Generating Units”
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.
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EPA is “Outed” for Use of Alias E-mail Accounts
Environmental Protection Agency (“EPA”) Administrator Lisa Jackson’s sudden resignation last week is not surprising in light of the recent revelations about the EPA’s use of “alias” e-mail accounts, purportedly for private communications between EPA officials. The use of such “aliases,” to protect confidential agency communications, appears on the surface benign. However, in the face of the statutory mandate for Federal government transparency, represented by the Federal Freedom of Information Act, 5 U.S.C. § 552, et seq., (“FOIA”), it is an ominous harbinger of the secretiveness of those who are appointed to serve the American public. Continue Reading EPA is “Outed” for Use of Alias E-mail Accounts
The D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule
On August 21, 2012, in a highly unusual disagreement with a rulemaking action by a Federal agency, the D.C. Circuit Court of Appeals sent the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution, or Transport, Rule, governing sulfur dioxide (“SO2”) and oxides of nitrogen (“NOx”) emissions, back to the agency with firm instructions to try again, and, next time, do a better job. What makes this decision somewhat unusual is that cross-state rules had previously been implemented by EPA for PM2.5 and ozone, and upheld by the D.C. Circuit, see, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) and North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
In its decision in EME Homer City Generating, L.P., et al. v. EPA, et al., Case No. 11-1302, the D.C. Circuit took strong issue with EPA’s attempt to meet its responsibility under Clean Air Act § 110(a)(2)(D)(i)(I), 49 U.S.C. § 7410(a)(2)(D). That section, the “good neighbor” provision, requires, in pertinent part, that, after EPA sets National Ambient Air Quality Standards (“NAAQS”), 42 U.S.C. § 7409, and designates areas within each state which exceed the NAAQS, 42 U.S.C. § 7407(d), or “nonattainment” areas, states must develop a state implementation plan (“SIP”), 42 U.S.C. § 7410, which includes provisions prohibiting any emissions source or activity “which will – contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard.” The D.C. Circuit found major legal flaws in EPA’s Transport Rule.
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