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

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. 
 


Continue Reading The D.C. Circuit Vacates EPA’s Cross-State Air Pollution Rule