On December 15, 2016, EPA issued a pre-publication version of new regional haze regulations. The Agency’s regional haze program regulates emissions affecting visibility in national parks, or “Class I” areas. EPA promulgated the regulations in 1999 with the goal of achieving natural visibility conditions by 2064. Under the program, states must create plans to control visibility-impairing emissions, and must update these plans every “planning period” of ten years.  The new regulations are intended to apply to the second planning period, but will become effective 30 days after the recently released rule is published in the Federal Register, which is scheduled for January 10th.

Some of the revisions are straightforward, such as delaying the deadline for the states to submit their plans for the second planning period by three years.  That change is intended to allow states more time to account for all the many recent changes in air quality regulations in deciding whether any additional measures are needed to make reasonable progress in improving visibility.  EPA has also eliminated certain procedural requirements for the 5-year progress reports due in the middle of each planning period, which should streamline that requirement.

However, many of EPA’s other revisions raise highly complex issues.  Perhaps the most difficult change to understand is EPA’s rearrangement of the order of steps in the planning process.  With these seemingly procedural revisions, EPA is asking states to decide which controls to impose on sources first, and only second establish the visibility goals that those controls are supposed to achieve, a process many commenters criticized as a “cart-before-the-horse” approach.  EPA’s intent with those revisions is to take visibility considerations out of the analysis of which controls are deemed “necessary” to make “reasonable progress,” which is all the statute requires (and therefore all that EPA is authorized to require).  With visibility out of the equation, all sources—even those previously subject to BART—will have to conduct a full-blown evaluation of all available control systems and install any that appear capable of cost-effectively reducing emissions, regardless of whether those emission reductions are actually expected to improve visibility at a nearby national park.

This “control requirements first, goals second” approach is what led EPA to impose $2 billion in control costs on sources in the state of Texas for visibility improvements that were mere hundredths of what any human could detect.  For that and many other reasons, Texas challenged EPA’s plan, and the U.S. Court of Appeals for the Fifth Circuit found enough merit in those claims to “stay” implementation of those requirements, a significant loss for the agency.  Undaunted, EPA has told the Fifth Circuit that it plans to abandon that particular rule for Texas, even while it has issued a separate, eerily similar rule for the state that may actually be even more stringent.  EPA also notes in its recently finalized revisions to the regional haze regulations that the ongoing litigation in the Fifth Circuit over the Texas plan will not affect its rule revisions, criticizing the Fifth Circuit judges’ opinion as an “outlier” and  a “fundamental misunderstanding” of the regional haze program.

Much remains to be seen on how the regional haze planning program will evolve, particularly given the impending change in administrations. President-Elect Trump’s choice for EPA Administrator, Scott Pruitt, Attorney General of Oklahoma, has been one of the most ardent opponents of EPA’s approach to implementing the regional haze program. As Attorney General, he challenged EPA’s regional haze plan for his state and narrowly lost in a 2-1 decision in the Tenth Circuit.  Assuming the Republican Congress confirms him, General Pruitt will likely want to reassess the direction the program has taken under President Obama and current Administrator Gina McCarthy’s leadership.

A copy of the pre-publication version of EPA’s final rule revisions is available here. For more information on the implications of the rule, please contact Mack McGuffey, Margaret Campbell, or Rich Pepper.