Last week, Washington became the latest state to address environmental justice (EJ) through legislation by adopting the Healthy Environment for All (HEAL) Act and the Climate Commitment Act into law. The HEAL Act, which is the more comprehensive of the two passed laws, was based on recommendations of a state-funded environmental task force issued in fall of 2020 and seeks to remedy the effects of past disparate treatment of vulnerable communities. The Climate Commitment Act is a more targeted law that establishes a greenhouse gas (GHG) emissions cap-and-invest program with the goal of reducing GHG and criteria pollutants in overburdened communities highly impacted by air pollution. Although the laws become effective on July 25, their major EJ-related requirements take effect at later dates.

Continue Reading Washington Adopts Two Ambitious Environmental Justice Laws

On October 29, EPA published a proposed revision to its Cross State Air Pollution Rule (CSAPR) Update in response to the remand of the rule by the D.C. Circuit. The CSAPR Update was promulgated under the Clean Air Act’s “Good Neighbor” provision, which requires states to ensure that pollution from sources within their borders does not significantly contribute to the ability of downwind states to attain or maintain the National Ambient Air Quality Standards (NAAQS). Under the Good Neighbor provision, if a State Implementation Plan (SIP) does not adequately address the interstate transport of pollutants, EPA must step in and issue its own rules through a Federal Implementation Plan (FIP). EPA issued the CSAPR Update in 2016, imposing FIPs on 22 states requiring ozone season NOx reductions from electric generating units (EGUs) to address the 2008 ozone NAAQS. In the 2018 CSAPR Closeout, EPA determined that no further emission reductions were required for all but two of the states covered by the CSAPR Update.

Continue Reading EPA Proposes Revised Cross-State Air Pollution Rule for the 2008 Ozone NAAQS

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.
Continue Reading New Jersey Passes Significant Environmental Justice Legislation

On July 8, 2020, EPA pre-published a proposed rule to amend the NESHAP for Industrial, Commercial, and Institutional Boilers and Process Heaters (Boiler MACT) in response to three remands issued by the D.C. Circuit—two in 2016 in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) and one in 2018 in Sierra Club, et al. v. EPA, 884 F.3d 1185 (D.C. Cir. 2018). Based on the proposal, EPA’s effort to comply with those decisions will make 28 emission limits more stringent than they were before, many only marginally so, but some by more than an order of magnitude.
Continue Reading EPA Proposes to Amend the Boiler MACT Standards

On April 22, 2020, EPA published an interim final rule providing relief to sources that are subject to the quality assurance testing and reporting under 40 CFR Part 75. The initial summary of the rule indicates the policy applies to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. However, the rule itself indicates that relief is available to any source that reports emissions to EPA under 40 CFR part 75. EPA expects the rule will provide relief for hundreds of facilities that would otherwise be required to conduct over a thousand quality assurance tests combined during the next three months in the midst of the ongoing pandemic.
Continue Reading EPA Provides Relief for Sources Subject to Part 75 Quality Assurance Testing in Response to COVID-19

On February 5, 2020, EPA issued a final rule revising the petition provisions of the Title V permitting program. Under the CAA Title V program, permitting authorities must submit proposed Title V permits to the EPA administrator for a 45-day review before issuing the final permit. If the administrator has no objections within this period, any person may petition the administrator within 60 days thereafter to ask EPA to object to the permit.
Continue Reading EPA Streamlines the CAA Title V Petition Process

On June 21, 2019, the White House Council on Environmental Quality (CEQ) released a new draft guidance redefining the process federal agencies will use to evaluate greenhouse gas (GHG) emissions under the National Environmental Policy Act (NEPA). In marked contrast to GHG guidance issued by CEQ under the Obama Administration in 2016, the draft guidance encourages federal agencies undertaking NEPA review to follow the “rule of reason” and use their “expertise and experience” to decide whether and to what degree the agency will analyze particular effects of GHG emissions. Therefore, the draft guidance moves to a more deferential approach to agency review under NEPA than the Obama Administration’s prescriptive guidance. The draft guidance will be published in the Federal Register for public review and comment. If finalized, it will replace the Obama Administration’s 2016 guidance, which was withdrawn effective April 5, 2017, after President Trump issued Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” 
Continue Reading A Clear Shift in Policy: CEQ Issues Draft Guidance for Consideration of Greenhouse Gas Emissions Under NEPA

On June 7, 2018, U.S. EPA issued an advance notice of proposed rulemaking (“ANPR”) aimed at developing a consistent and transparent interpretation of cost and benefits consideration in regulatory analyses, including regulations promulgated pursuant to the Clean Air Act, Clean Water Act, Safe Drinking Water Act and other statutes.  EPA will accept comments on the ANPR for 30 days after it is published in the Federal Register. 

Assessing costs and benefits has been a contentious part of EPA rulemakings.  For instance, in the Mercury and Air Toxics (MATS) rulemaking, EPA determined that the monetized cost of the rule would be $9.6 billion annually whereas the monetized benefit would be $4-6 million annually.  EPA determined that MATS was nevertheless “appropriate” regulation, but the Supreme Court reversed, ruling that the agency had improperly refused to consider costs.  While EPA, during the Obama administration, subsequently modified its “appropriate” determination for the MATS rule, it has been speculated that the Trump administration might take some further action in that regard.
Continue Reading EPA Considers Changing its Cost-Benefit Review Process

The U.S. EPA has adopted final nonattainment designations for 51 areas across the country for the agency’s 2015 national ambient air quality standards (NAAQS) for ozone.  In a previous action, EPA had issued its attainment and unclassifiable designations, finding that 85% of the nation’s counties qualify for one of those designations (a designation of unclassifiable means that the agency does not have enough information to determine whether the areas is in attainment or. nonattainment).  Still to come, likely by July 17, 2018, is action by EPA on eight counties around San Antonio, Texas.

Continue Reading EPA Establishes Final Ozone Designations

On April 17, 2010 EPA issued a guidance document on the implementation of significant impact levels (“SIL”) for ozone and fine particles.  Under EPA’s air pollution permitting regime known as “New Source Review,” SIL values are one way to demonstrate that a new facility or modification of an existing facility will not cause a violation of the National Ambient Air Quality Standards (“NAAQS”) or Prevention of Significant Deterioration (“PSD”) increments for a regulated pollutant.  In short, if a source’s “projected impact on air quality” is below the “SIL,” the source is deemed to have no significant impact on air quality.  If a source’s impacts are above the SIL, far more extensive modeling analyses are needed to demonstrate compliance, so the SIL helps streamline the permitting process for projects that can meet it.

Continue Reading EPA Streamlines NSR Permitting for Projects with Insignificant Air Quality Impacts