Archive for the ‘Clean Air Act’ Category

30 Jan

China Is “All Out of Love” For Its Air Supply

Posted by Kyle Hargus in Air Pollution, China, Clean Air Act.

Photo by Erik Charlton. Some rights reserved.

Photo by Erik Charlton. Some rights reserved.

Last summer, we reported on a Twitter account operated from the U.S. embassy in Beijing (@BeijingAir) which tweets hourly reports on the air quality levels in Beijing. We noted in our report that the Chinese government was hoping to get the account shut down and, while it is still up and running at the time of writing this, a cursory glance at any of its tweets makes it easy to see why. The pollutant levels are almost always deemed “Hazardous,” and at certain times, the quality is pushed into the category “Beyond Index,” which, to me, is utterly terrifying.

This week, the AP reported extensively on the worsening air quality in Beijing and northern China in general, where thick blankets of hazardous smog got so bad this week that airports were forced to cancel flights due to poor visibility, and 103 factories were also temporarily shut down by the Beijing government to prevent further pollution of the air. Hospitals saw a 30% increase in patients seeking treatment for respiratory issues over the past month. In some areas, visibility in the streets was less than 100 meters, causing landmarks and skyscrapers to disappear behind the curtain of fog.

The U.S. embassy Twitter account monitors PM2.5, a fine particle pollution of less than 2.5 micrometers in diameter, and posted an hourly high of 526 micrograms per cubic meter, which is more than 20 times higher than the maxim set by World Health Organization safety levels. Even the figure reported by the Beijing city government (which consistently reports levels lower than those reported by @BeijingAir) for the same hour block was 433 micrograms per cubic meter, still considered highly dangerous by the WHO. A poll created by Chinese real estate mogul Pan Shiyi calling for a Chinese Clean Air Act to deal with some of these issues and prevent the situation from worsening even further received over 32,000 affirmative votes in under 10 hours.

16 Nov

Second Term Preview of Environmental Regulation

Posted by John Renehan in Clean Air Act, Climate Change, Environmental Activism, Environmental Enforcement, Fuel Efficiency, Global Warming, Greenhouse Gas Emissions, Hydraulic Fracturing, Oil and Gas Sector, Pipelines, Renewable Energy.

Photo by Carl Chapman, some rights reserved

In the next four years, the Obama administration will make its mark on energy and environmental laws, working through pending legislation and proposed regulation as well as considering further reforms in response to environmental and industry lobbying.

A Marten Law memo has the rundown on anticipated changes to energy and environmental laws. Obama’s “all of the above” energy strategy, well chronicled at the Green Mien, is likely to continue. Federal renewable energy programs have seen opposition recently, and the outcome of the pending battle of the wind energy production tax credit will be an early test of the Obama Administration’s policy. Either way, renewable energy growth is likely to be lower in the coming years as production of natural gas continues to increase.

Fracking, too, has contributed to the domestic supply surge, while prompting calls for closer regulatory scrutiny. In response, the Obama Administration has proposed regulation of fracking on federal lands, and EPA is studying the potential impact of horizontal drilling on drinking water.

Energy infrastructure questions are on the agenda, too. Most importantly, the Administration will decide whether to authorize a re-routed Keystone XL pipeline bringing oil from Canadian tar sands to the Gulf of Mexico. Proposals for coal and natural gas export terminals are making their way through state and federal agencies as well.

In the news this week is Obama’s stance on climate change, a topic he avoided during his election campaign. A second term will ensure that EPA will proceed with its plan to regulate greenhouse gas emissions under existing provisions of the Clean Air Act, a plan upheld last summer by the D.C. Circuit Court of Appeals. In addition, EPA is expected to release standards for greenhouse gas emission from power plants and refineries. Several challenges to air quality rules are still pending, though, notably the Cross-State Air Pollution Rule and the Boiler MACT rule affecting industrial facilities.

At a press conference Wednesday, President Obama responded to a reporter’s question about his specific plans to address climate change. You should read his entire response here, but he made himself clear that ignoring jobs and growth simply to address climate change is not on his agenda: “I won’t go for that.” An agenda for job growth that includes making a dent in climate change, however, is “something the American people would support.”

In addition to air and energy policy previews, Marten Law’s memo has summaries of expected policy developments in natural resources and hazardous waste regulation.

27 Jun

US Appeals Court Protects EPA’s Jurisdiction Over Greenhouse Gases

Posted by Kyle Hargus in Air Pollution, Clean Air Act, EPA.

Yesterday, the US Court of Appeals for the District of Columbia ruled unanimously in favor of the EPA, confirming that the agency does indeed have authority under the Clear Air Act to regulate air pollution by setting strict limits on carbon emissions from main offenders like power plants and oil refineries. Specifically, the decision gave the EPA jurisdiction over regulation six greenhouse gases by implementing a carbon credit system. But the case, The Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, has a bit of a history so first, a quick primer.

The US Supreme Court first ruled in favor of EPA carbon and methane regulation in Massachusetts v. EPA on April 2, 2007, giving the agency free reign to declare when emissions became dangerous. In 2009, such a declaration was made in the form of an endangerment finding, which led to tightening of regulations in large-scale industries. Last year, the Supreme Court unanimously reaffirmed its Massachusetts ruling in American Electic Power v. Connecticut, a case which we covered in June 2011.

So it may come as little surprise, then, that the most recent challenge to the EPA from the Coalition for Responsible Regulation, a group made up of representatives from coal, oil, and steel industries, organizations opposed to climate science, and tea-party politicians (including former Presidential candidates Rick Perry and Michelle Bachmann), was also unanimously shut down. The court opinion affirms the endangerment finding, as well as the clean car standards approved by Obama in 2009 which limit carbon pollution for vehicles and the timing and tailoring rules for new power plants with large industrial emitters. The coalition emerged from a three-part consolidation effort of anti-EPA lawsuits in February of this year. These challengers argue that the EPA carbon rules are unlawful and immensely damaging to U.S. industry and thus the economy. House Energy and Commerce Committee chairman Fred Upton (R-Mich) said of the ruling:

“We cannot afford the EPA’s continued expansion of red tape that is slowing economic growth and threatening to entangle millions of small businesses.”

However, proponents of climate science are singing a different tune. EPA Administrator Lisa Jackson said here agency was merely taking “reasonable actions to address the very real threat of climate change,” while former-EPA administrator Carol Brown stated:

“The Court’s decision should put an end, once and for all, to any questions about the EPA’s legal authority to protect us from industrial carbon pollution through the Clean Air Act. The decision is a devastating blow to those who challenge the overwhelming scientific evidence of climate change and deny its impact on public health and welfare.”

Check out further insight from the JECE Energy blog, and related Law Firm memos from Morrison Foerster and Stoel Rives.

26 Jun

U.S. Court Upholds EPA’s GHG Rules

Posted by Hester Serebrin in Clean Air Act, EPA, Greenhouse Gas Emissions.

On Tuesday, June 26, the U.S. Court of Appeals for the D.C. Circuit released an opinion in Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, upholding the agency’s rules regulating greenhouse gases.

From the opinion:

Following the Supreme Court’s decision in
Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified
that greenhouse gases are an “air pollutant” subject to regulation
under the Clean Air Act (CAA)—the Environmental Protection
Agency promulgated a series of greenhouse gas-related rules.
First, EPA issued an Endangerment Finding, in which it
determined that greenhouse gases may “reasonably be
anticipated to endanger public health or welfare.” See 42 U.S.C.
§ 7521(a)(1). Next, it issued the Tailpipe Rule, which set
emission standards for cars and light trucks. Finally, EPA
determined that the CAA requires major stationary sources of
greenhouse gases to obtain construction and operating permits.
But because immediate regulation of all such sources would
result in overwhelming permitting burdens on permitting
authorities and sources, EPA issued the Timing and Tailoring
Rules, in which it determined that only the largest stationary
sources would initially be subject to permitting requirements.
Petitioners, various states and industry groups, challenge all
these rules, arguing that they are based on improper
constructions of the CAA and are otherwise arbitrary and
capricious. But for the reasons set forth below, we conclude: 1)
the Endangerment Finding and Tailpipe Rule are neither
arbitrary nor capricious; 2) EPA’s interpretation of the
governing CAA provisions is unambiguously correct; and 3) no
petitioner has standing to challenge the Timing and Tailoring
Rules. We thus dismiss for lack of jurisdiction all petitions for
review of the Timing and Tailoring Rules, and deny the
remainder of the petitions.

Read more from Reuters.

13 Jun

War on Diesel

Posted by Hester Serebrin in Agency Administration, Clean Air Act, Diesel, Nitrogen Oxide.

Diesel has gotten more than its share of coverage in environmental news recently. Fans of diesel might have liked last week’s post about a CA district court’s decision holding that RCRA does not apply to diesel exhaust, because the exhaust is neither a solid nor hazardous waste. But things aren’t looking as good for diesel this week:

  • On Tuesday, the U.S. Court of Appeals for the D.C. Circuit held that the EPA “lacked good cause for not providing formal notice-and-comment rulemaking” in a suit filed against the EPA for promulgating an interim final rule on nitrogen oxide emissions. Specifically, the interim final rule basically permitted some manufacturers of heavy-duty diesel engines to pay penalties rather than, well, comply with the actual final rule, which required a 95 percent reduction in the emissions of nitrogen oxide from heavy-duty diesel engines. Before I read the decision, I’d expected the petitioners to be angry environmentalists, but I guess it’s not surprising that they were actually manufacturers of diesel engines who had spent hundreds of millions of dollars already to bring their engines into compliance. The court vacated the interim final rule. For more details, read this post on the Jenner & Block Corporate Environmental Lawyer Blog.
  • And it was a well-timed decision: on the same day, WHO’s International Agency for Research on Cancer officially classified diesel engine exhaust as “carcinogenic to humans,” based on “sufficient” evidence that exposure to the exhaust is associated with an increased risk for lung cancer. This is a more dire outcome than diesel exhaust’s last evaluation – in 1988 it was classified only as “probably carcinogenic to humans.” Read the full story on the Atlanta Journal-Constitution.

7 Jun

CA Court: RCRA Does Not Apply to Diesel Exhaust

Posted by Hester Serebrin in Clean Air Act, RCRA.

Photo by Paul Hamilton. Some rights reserved.

RCRA (Resource Conservation and Recovery Act, or, less fondly, Really Confusing Regulations Act) governs the management of hazardous waste in order to prevent threats to human health and the environment. It was RCRA that plaintiffs in a recent case against Union Pacific Corp., et al., hoped would aid them in curbing the amount of “deadly diesel particulate pollution” that is “spewing from sixteen railyards located throughout California.”

The complaint in Center for Community Action and Environmental Justice et al v. Union Pacific Corporation et al was filed in October 2011. The plaintiffs (Center for Community Action and Environmental Justice, East Yard Communities for Environmental Justice and Natural Resources Defense Council Inc) argued that because diesel particulate matter (DPM) is comprised of solid particles, many of which are on the RCRA list of hazardous substances (such as arsenic and mercury compounds), that DPM is both a solid waste and a hazardous waste within the meaning of RCRA (42 U.S.C. § 6903(5), (27)) , and that DPM should be regulated as such. If this categorization passed muster with the court, the “creators” of DPM (the defendants) would be forced to follow RCRA regulations in handling, storing, treating, and disposing of the DPM, as well as limiting or controlling the amount of DPM generated.

The court, however, was not swayed. According to a Morrison Foerster, the court held that RCRA does not apply to the diesel exhaust “both because DPM is not a ‘solid or hazardous waste’ under RCRA and also because Congress intended the Clean Air Act (‘CAA’) to regulate diesel emissions comprehensively.” For more details, check out the recent MoFo Client Alert on the decision.

24 May

FERC Issues Policy Statement on Advising the EPA on MATS Extensions

Posted by Hester Serebrin in Clean Air Act, EPA, FERC, Mercury.

Photo by Titus Tscharntke. Some rights reserved.

Photo by Titus Tscharntke. Some rights reserved.

This guidance used to be just a glimmer in the commission’s eye. But as of May 17th, it’s official. That’s when FERC released its Policy Statement on the Commission’s Role Regarding the Environmental Protection Agency’s Mercury and Air Toxics Standards.

The Policy Statement specifically explains how FERC will provide advice to the EPA for it to rule on requests for Administrative Orders (AO) to operate in noncompliance with EPA’s Mercury and Air Toxics Standards. Last week’s Policy Statement was drawn up with consideration of all comments FERC received on a January 2012 white paper soliciting input on the staff’s position on the topic. (Our original post on the topic describes the standards and the EPA/FERC relationship in a bit more detail.)

Van Ness Feldman’s recent Alert on the topic sums up nicely both the Policy Statement and its implications:

FERC’s new Policy Statement provides that for each such extension request, it will advise EPA whether failure to grant such an extension might lead to a violation of a FERC-approved Reliability Standard.  It will not, however, recommend to EPA that the Agency grant or deny such extension requests, and will not advise EPA on potential impacts that are not within FERC’s jurisdiction over reliability standards. 

[…]

The Policy Statement has a narrow scope limited to case-by-case input to EPA on the potential reliability issues raised by individual generators retrofit or deactivation timelines that fall within FERC’s reliability jurisdiction.  FERC’s input is not binding guidance to EPA.  Moreover, the Policy Statement does not address the broad scope of reliability concerns that industry and policymakers have raised in connection with the Utility MATS rule.  Concerns such as system resource adequacy and safety, coordination to schedule outages among generators within a region, and the potential regional reliability impact of multiple base load generators that choose to deactivate rather than comply with the Utility MATS rule are not addressed in FERC’s Policy Statement.  The limited scope of the Policy Statement may prompt renewed calls by policymakers as well as industry for a more comprehensive, coordinated regional process to address the broader reliability concerns with the Utility MATS rule.

19 Apr

“In response to a court deadline…”

Posted by Hester Serebrin in Clean Air Act, Environmental Enforcement, Fracking, Hydraulic Fracturing, Natural Gas.

“In response to a court deadline,” the EPA yesterday finalized the long-awaited (and long-dreaded, by some) rules that aim to reduce air pollution from the oil and natural gas industry, including setting “the first federal air standards” for natural gas wells that are hydraulic fractured. According to the EPA, these rules are expected “to yield a nearly 95 percent reduction in [volatile organic compound] emissions from more than 11,000 new hydraulically fractured gas wells each year.”

Back in August of 2011, when we covered the release of the proposed rules, the EPA was supposed to finalize the rules by February 28, 2012. However, prompted by the outpouring of public comments on the release – including requests to extend the comment period – the litigants agreed to a 35-day extension, pushing out the deadline to April 3, 2012 (um…a few weeks ago, by my count).

Plaintiff WildEarth Guardians was understandably pleased at the news.

More analysis of the new rules can be found on The Hill’s Energy & Environment Blog.

31 Jan

FERC Waxes Poetic on Advising EPA about MATS Extensions

Posted by Hester Serebrin in Clean Air Act, EPA, FERC, Mercury.

Photo by Pull Strings, Push Shapes. Some rights reserved.

The same day that the EPA released the final rule on Mercury and Air Toxics Standards (MATS) for power plants, it also published a Policy Memorandum outlining how it intended to handle requests for extensions in complying with the new rule. Yesterday, FERC announced how they intended to give the EPA a hand.

Section 112(i)(3) of the Clean Air Act establishes that affected sources must be compliant with MATS within three years, with an extension of up to one year available in certain cases. In addition, under Section 113(a) of the CAA – 42 USC 7413(a) – certain affected sources can obtain another one-year extension through an administrative order (AO).

The EPA’s Policy Memorandum addresses AOs issued for sources that “must operate in noncompliance with the MATS for up to a year to address a specific and documented reliability concern.” This extension would help bridge the gap when electric generating units may be needed to operate “to maintain the reliability of the electric grid when they would prefer, or could be required, to halt operations temporarily (until controls [needed to bring the unit into compliance with the new rules] can be installed).”

And this is where FERC steps in.

Because under the Federal Power Act, FERC is the regulatory agency charged with overseeing the reliability of the bulk power system, EPA plans to take advantage of FERC’s prowess. Although “the EPA’s issuance of an AO is not conditioned upon the approval or concurrence of any entity,” states the Policy Memorandum, “the EPA intends to consult, as necessary or appropriate on a case-by-case basis, with FERC and/or other entities with relevant reliability expertise.”

On January 30th, 2012, FERC released a white paper outlining the staff’s position on how FERC should advise the EPA on the requests for extensions. For instance, “Staff believes that the Commission should not permit entities to intervene in the preparation of the Commission comments to the EPA.”

One would hope not.

FERC is currently soliciting comments on the white paper under Docket No. AD12-1-000.

4 Aug

Proposed EPA Amendments under the Clean Air Act and the Impact on Hydraulic Fracturing Operations

Posted by Hester Serebrin in Clean Air Act, Fracking, Hydraulic Fracturing.

Photo by Fabio Marini. Some rights reserved.

The folks over at Fulbright & Jaworski must have put in quite a few hours poring over the 604-page proposed rule released by the EPA last Thursday – the law firm’s Briefing on the topic is anything but brief.

The EPA’s proposal describes how the EPA will address “the reviews of the new source performance standards for volatile organic compound and sulfur dioxide emissions from natural gas processing plants,” and is the result of a Consent Decree issued in a case where WildEarth Guardians (and friends) brought suit against the EPA for failing “to perform its obligations under section 111(b)(1)(B) of the Clean Air Act […] to review and revise the [new source performance standards ("NSPS")] for the Crude Oil and Natural Gas Production source category.”

The Consent Decree (you can see a copy of it as originally proposed here) required the EPA to sign by July 28, 2011 proposed standards and/or determinations not to issue standards pursuant to CAA sections 111(b)(1)(B), 112(d)(6) and 112(f)(2) and to take final action by February 28, 2012.

However, I won’t waste your time trying to summarize the proposal nor its implications for hydraulic frackers when Fulbright does such a thorough job – check out their analysis here.

At the time of writing, the proposal has not been published the Federal Register, but is expected shortly, at which point you will have 60 days to submit your comments.

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