Environmental Law Professor Robert Glicksman
§ 7410(a)(1) – Process by which states adopt SIPs
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- Nothing in its language suggests that the Administrator is to consider economic or technological feasibility in setting ambient air quality standards.
- Economic impact may be considered during implementation.
| § 7410(a)(1) – Process by which states adopt SIPs.
§ 7410(a)(2) – Mandatory minimum contents of each SIP. List of a dozen necessary items. § 7410(a)(2)(A) – Including “enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of [the CAA].” 42 U.S.C. § 7410(k) – Once SIP has been submitted, EPA must review it. Does it contain all of the required information? § 7410(k)(3) – “In the case of any submittal on which the Administrator is required to act under paragraph (2), the Administrator shall approve such submittal as a whole if it meets all of the applicable requirements of this chapter.” EPA shall approve plan if it meets requirements of § 7410(a)(2). Mandatory language. State needs a different SIP for each criteria pollutant. Each must specify the manner in which the state will move from noncompliance to compliance or the manner in which the state will maintain compliance. States determine contents of SIP, as long as they comply with the minimum requirements of § 7410(a)(2). States have discretion to determine how to meet NAAQS. In 1977 and 1990, Congress reduced state discretion to allocate among their pollution sources the right to emit criteria pollutants. Applies most forcefully to states that have not achieved NAAQS. Congress pulled in the reins. Deadlines by Which States Must Submit SIPs Why would states have incentives to delay submission of SIPs? To take advantage of more developed plans of other states. Economic – The longer a state delays, the longer its polluters may operate without costly pollution controls. Fosters race to the bottom. Congress recognized these incentives, and so it imposed deadlines. Sanctions for Late Submission Adverse consequences. § 7410(c) – EPA may develop a plan for a delinquent state. Not an attractive option. State loses control over ultimate policy choices. Three Options for State to Allocate Its Aggregate Emissions Divide pie of allowable emissions based on historical practice. “If you polluted in the past, we will allow you to pollute to the same extent in the future.” Divide pie based on importance to the state economy of the emitters. State will not crack down on valuable industries, but it will impose stringent economic burdens on less valuable players. Allocate pie based on technological feasibility of emission controls for various industries. Industry-specific technological standards. Train v. NRDC (Page 5 of Virginia case) – Recognizing discretion of state to choose among these schemes (or other policy choices) as long as it achieves the NAAQS. New Stationary Sources (Federal) – Almost always subject to technology-based controls. Dividing Responsibility for Reducing Emissions Among Stationary & Mobile Sources Congress and states have been more reluctant to crack down on mobile sources. Few attempts to change behavior of individual vehicle drivers. E.g., HOV (“carpool”) lanes; tolls; prohibitions on certain people driving on certain days (possible). EPA and states expected a backlash against an individual-driver crackdown. Some crackdown attempts have been repealed. Thus, there has been a greater effort to control industrial emissions. Federal Control Retained Tailpipe emission standards, i.e., how car manufacturers must build pollution controls into their cars. 42 U.S.C. § 7521. California has limited discretion in this area. 42 U.S.C. § 7412 – Hazardous air pollutants. Shifted from ambient standards to technology-based standards. Congress retains control here. National, uniform standards. States may not allow their own sources to undercut these standards. 42 U.S.C. § 7411 – Governs emissions by new stationary sources. National, uniform, federal standards. Relevant to lead standards. Note – Beyond these three areas, states have a lot more discretion. Nonattainment Provisions Generally Context – State fails to achieve compliance despite having an adequate and approved plan. Original deadline for compliance was 1975–76. Clearly, this deadline was not met. 1977 Amendments – Designed to facilitate compliance with NAAQS. Distinguished between attainment and nonattainment areas. Imposed more rigorous requirements on nonattainment areas. Reduced states’ discretion. EPA became more vocal about which emission controls were required in these areas. The more extreme the noncompliance, the more rigorous the EPA standards became. 42 U.S.C. § 7511(a) (“Classification and attainment dates for 1989 nonattainment areas”) Added by 1990 Amendments. Statute distinguishes among five ozone noncompliance areas. More rigorous control obligations are imposed on greater noncompliance levels. 1977 and 1990 Amendments also extended deadlines for compliance. EPA may impose penalties on states not meeting extended deadlines. E.g., per-ton fee on non-attained pollutants. 1990 Amendments Certain areas must reduce certain ozone precursors, i.e., VICs, by specified rates annually. § 57511(c)(2)(B), (G). Removes some discretion from states to abate air pollution. EPA dictates that states must reduce VOCs by a certain rate in certain nonattainment areas. Characteristic Problem – Air Quality Control Region (AQCR) is nonattainment because it is noncompliant for a particular criteria pollutant. Compliance could be achieved by: Shutting down some emitting factories. Not allowing any new stationary sources of the criteria pollutant. These two strategies essentially are off the table. Congress largely has pursued neither strategy. Why? Not willing to pay the price of economic disruption. E.g., people losing their jobs. This would result in a great public backlash against the EPA. Shutting down factories may result in greater pollution than keeping them open. Risk-Risk Argument – People that would be fired would suffer worse health effects than if they continued working, e.g., because they could no longer afford health insurance. Want to incentivize modernized, more efficient factories. More Feasible Solution 42 U.S.C. § 7502(c)(1)–(9). Added in 1977. Adds another list of mandatory elements for SIPs over and above existing requirements if a state has nonattainment areas for particular pollutants. Non-attainment-specific requirements. Examples Reasonably available control measures implemented as expeditiously as possible. Illustrates technology-based controls. Enforceable emission limitations as necessary to attain NAAQS by statutory deadlines. § 7502(c)(2) (“Such plan provisions shall require reasonable further progress.”) Assumes that some progress has occurred and then requires more. Definition of “Reasonable Progress” – § 7501(1) (“The term ‘reasonable further progress’ means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.”). Measuring progress by concentrations of pollutants in ambient air. RFP aims to bring ambient concentration levels down from nonattainment levels to NAAQS levels by the NAAQS deadlines. New Source Review Generally Context – Improving air quality when you have new stationary sources being built in a non-attainment area. Obvious solution of prohibiting new plants until the area comes into compliance may not be available. New stationary sources need to obtain new permits when they are initially built or subsequently modified. Two Permit Programs (State-Run) Major new or modified sources in nonattainment areas. Major new or modified sources in PSD areas. § 7602(j) – Definition of “major stationary source” or “major emitting facility.” “The terms ‘major stationary source’ and ‘major emitting facility’ mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant.” § 7502(c)(5) – “Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area.” States must institute a NSR program. Routine repair and replacement do not qualify as modifications. Even if such a project increases emissions, it does not amount to a modification that justifies NSR. Two Justifications Not a real physical change. Slight increase in emissions fall within authority of EPA to exempt de minimis activities from regulation. EPA has inherent authority to ignore de minimis threats. Scope changed by EPA in 2003. Any physical change in a plant that would cost up to 20% of cost of entire plant replacement (but not more than), then that change qualifies as a routine repair or replacement and is exempt. Does not matter how much the change increases emissions. They could quadruple, and if the change cost less than 20% of entire replacement cost, the change is exempt from NSR. Challenged in New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006). Held that any physical change triggers NSR as long as it increases emissions. Overruled 2003 EPA changes. EPA used to look at average annual emissions. Now, EPA looks at hourly emissions rates. As long as a physical change does not increase hourly emissions, it does not qualify as an increase in emissions. Results in increased emissions. Environmental Defense v. Duke Energy Corp. – Court disagreed with this reading of statute. This is an inappropriate attempt to narrow scope of NSR. State may grant a permit only if certain requirements are satisfied. § 7503(a)(2) (“The permit program required by section 7502(b)(6) of this title shall provide that permits to construct and operate may be issued if . . . the proposed source is required to comply with the lowest achievable emission rate.”). Lowest Achievable Emission Rate – Defined at § 7501(3). Technology-based control. 42 U.S.C. § 7411 – EPA may issue national emissions standards for new sources. Technology-based. Not technology-forcing. (There is a little bit of technology-forcing, but not much.) EPA must compile a list of polluting stationary sources that may be thought reasonably to endanger public health. Once EPA lists a category, it must list a standard of performance for any source built belonging to one of these categories. § 7411(a)(1) – Standard of performance. “A standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction.” Technology-based standard. National standards are necessary to prevent states from setting different NSR standards and initiating a race to the bottom. National uniform standards set a level playing field—a floor. 42 U.S.C. § 7416 – Allows states to apply more stringent controls than those imposed by the EPA. States may not impose less stringent standards. Problem – If we build new sources, won’t there be more pollutants in the air? How do we address this problem when we want to reduce pollutants? Any pollutants emitted by a new stationary source must be offset. § 7503(a)(1). Effectively, there must be fewer emissions in the air after the new facility is built. This makes it an “offset-plus” requirement. Reduced emissions come from other facilities. The new source pays existing sources to better control their emissions. E.g., “Hey, neighbor. If you reduce your allowable emission cap, we’ll compensate you.” If the cost of paying off its neighbors outweighs the value that the new source achieves from operating, then everyone is happy. This is a form of emission trading. Evaluation of NSR Allows for the achievement of emissions reductions while not directly stifling economic growth, i.e., imposing a moratorium on new sources. However, the permit program has time and energy costs. New sources have to work hard to make it work. They often attempt to find ways to escape the NSR program. They have lobbied the EPA to limit the scope of NSR, and the EPA has accommodated them at times. More Controversy – Offset trades on paper may not advance the goals of the CAA. A source may be contemplating shutting down, which would mean that it would no longer be emitting. Then, a new source comes along and offers to buy the soon-to-close source’s emissions. Effectively, a new source pays another source to close, and the trading program ensures that almost the same level of emissions continue to be pumped into the atmosphere. Keep NSPS and NSR distinct. NSPS - § 7411. Technology-based standards. NSR - § 7502(c)(5), § 7503, § 7475(a)(1). Permit program. Mobile Sources in Nonattainment Areas Increased tolls. Vehicle inspection programs for tailpipe emissions standards. EPA received a lot of flak about this program, and so it allowed the states to run decentralized programs. Eventually, this program was repealed. Exemplifies Congress’ inability to reduce tailpipe emissions by changing individual driver behavior. Addressing the automotive industry probably is more effective. Prevention of Significant Deterioration (PSD) Provisions Generally See pp. 497–501. Context – Air quality already is better than required by the NAAQS. PSD program introduced with 1977 Amendments. Purposes – See p. 498 Three Primary Purposes Health-based. Protecting scenic vistas in the West. Preventing degradation of air quality in clean-air areas that would occur without protection beyond NAAQS. Stopping humans from degrading environment. Moral duty to enforce non-degradation principle. Regulations at 40 C.F.R. § 52.21. AQCR may be a PSD for one or more pollutants even though it is nonattainment or others; and no AQCR is nonattainment for all pollutants. Limits the incremental introduction of pollution in attainment areas. Only negligible increases in pollution are permitted in certain areas. Degradation is measured by ambient air concentrations. Measured in “PSD increments.” 42 U.S.C. § 7473 (concerning sulfur oxide and particulate matter). Three Classes Class I – National parks and wilderness areas. Most protection. Only smallest amount of deterioration allowed. Class II – Intermediate amount of degradation allowed. Class III – Greatest amount of deterioration allowed. PSD Permit Program § 7475(a)(1) – “No major emitting facility on which construction is commenced after August 7, 1977, may be constructed in any area to which this part applies unless . . . a permit has been issued for such proposed facility in accordance with this part.” § 7475(a)(3) – Contribution of pollutants must fall below allowable limit. § 7475(a)(4) – Each PSD polluter is subject to best available control technology. Case-by-case determination of what is economically and technology feasible. Related to § 7501(3) (lowest achievable emission rate), which is stricter than this provision. Assures that new sources do not increase pollution beyond the small allowable limits. Two-Part Modification Test Physical change; and Increase in emissions. What is the baseline against which a comparison is made? 2002 reforms allow sources to pick any two of the previous ten years, average them, and use that rate of emissions as the baseline. The years with the highest emissions always are used because this results in the lowest increase in emissions. This procedure has been challenged. New York v. EPA, 413 F.3d 3 (D.C. Cir. 2003) (upholding procedure). Court held that regulated sources must keep records of their emissions. Cases Natural Resources Defense Council v. Train General Contents Procedure for listing a pollutant under §§ 108–10. Mandatory language of § 108(a)(1). Purpose of CAA as discerned from statutory language. Legislative history behind listing procedure. Scope of EPA’s discretion in listing pollutants. Court did not buy EPA’s argument in this case. § 7408(a)(1) contains mandatory language. If any of the (A)–(C) criteria are satisfied, a pollutant must be listed. Only two factors for pollutant listing: (1) dangerous and (2) in the air. EPA could supplement the NAAQS with fuel standards, but it was required to list lead as a criteria pollutant. Since this case, lead has been listed as a criteria pollutant. Lead Industries Association, Inc. v. EPA General Contents Legislative history/congressional intent concerning subordination of economic or technological feasibility to achievement of health goals. Because of scientific uncertainty, EPA is to err on the side of caution in setting ambient air quality standards. Clinical/subclinical distinction. Protecting against subclinical (i.e., requiring laboratory tests to diagnose) effects of air pollution. Limited role of court in resolving disagreements among experts. Choosing an adequate margin of safety is a policy choice left up to EPA. EPA may use whatever process it wants to achieve an adequate margin of safety—even if it chooses to use multiple margins of safety. “Where Congress intends the Environmental Protection Agency to be concerned about economic and technological feasibility, it expressly so provides. Section 109(b) of the Clean Air Act, 42 U.S.C.S. § 740(b), speaks only of protecting the public health and welfare. Nothing in its language suggests that the Administrator is to consider economic or technological feasibility in setting ambient air quality standards.” Concerned listing lead as a criteria pollutant. NAAQSs are health-based, not economic-based or technology-based. Statute mandates that the air be clean enough to offer an adequate margin of safety. “Section 109(b) does not specify precisely what Congress had in mind when it directed the Administrator to prescribe air quality standards that are ‘requisite to protect the public health.’” “Congress' directive to the Administrator to allow an ‘adequate margin of safety’ alone plainly refutes any suggestion that the Administrator is only authorized to set primary air quality standards which are designed to protect against health effects that are known to be clearly harmful.” Gives EPA more room to protect public health. Precautionary principle; erring on the side of caution. EPA recently (within past few years) has admitted that there is no safe level of exposure to lead. This reinforces the importance of taking a precautionary approach to regulation. “Requiring EPA to wait until it can conclusively demonstrate that a particular effect is adverse to health before it acts is inconsistent with both the Act's precautionary and preventive orientation and the nature of the Administrator's statutory responsibilities.” Congress intended CAA to serve a preventive or precautionary function, and imposing a more stringent standard would lead to many people being hurt while we were waiting for the “evidence to come in.” Much public health harm would occur before medical consensus came to be. EPA may regulate in the face of scientific uncertainty. EPA can regulate risks, which contain some degree of uncertainty, in addition to known harms. See note 2 following case. Other Cases Many cancer-causing substances are non-threshold. Science cannot determine a safe level of exposure. Only safe level of exposure is zero. Considering this, how is the EPA to determine an appropriate level of safety or an adequate margin of safety? It must adopt a zero-level standard, but EPA has been reluctant to do this. E.g., banning the use of mercury would reek havoc on the economy. Thus, EPA regulated only six pollutants until 1990. After 1990, Congress switched CAA from a health-based approach to margins of safety to a technology-based approach. Now, industry must do the best it can to curb pollutants. Economic impact may be considered during implementation. Virginia v. EPA General Contents Harmful effects of ground-level ozone; process by which ozone is produced; regulation thereof. All aspects of SIPs SIP Call – “EPA's declaration that a state's implementation plan is substantially inadequate and must be revised.” SIPs – When they are required; how they are implemented; sanctions for failure to implement; EPA review process. Whether EPA can require states to adopt particular emission controls. Extent to which EPA can require states to modify inadequate SIPs. May EPA reject a state plan that it regards as inadequate? Yes. § 7410(k)(3). Then it must give state a chance to cure problem. If state does not sure problem, EPA must intervene and adopt a plan for a state. § 7410(c). Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. 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