Air Quality

Subscribe to Air Quality

Earlier this week, EPA published its proposed new methane regulations for the oil and gas sector. These new rules will have significant practical implications for the industry and have the potential to set new precedent for EPA’s authority under the Clean Air Act to address climate change for other industries as well. While the proposal is over 150 pages long, it does not include the actual text of the proposed rules, promising instead to provide proposed text in a supplemental notice early next year.
Continue Reading EPA Issues Highly Anticipated Methane Rule for the Oil and Gas Sector

The U.S. Supreme Court has elected to hear a legal dispute over the scope of the authority granted to the Environmental Protection Agency (EPA) under the Clean Air Act to regulate greenhouse gas (GHG) emissions from existing power plants. In orders issued October 29, the Court granted certiorari to four petitioners — West Virginia, North Dakota, the North American Coal Corporation, and Westmoreland Mining Holdings LLC — seeking reversal of a September 2020 D.C. Circuit Court of Appeals decision striking down the Affordable Clean Energy (ACE) rule.
Continue Reading Supreme Court Will Hear Controversy Over EPA Regulation of Greenhouse Gases from Existing Power Plants

The Biden EPA just did something unexpected — it decided to keep a Trump EPA rule, at least for the time being. The rule, known as “project emissions accounting” under the “New Source Review” (NSR) air permitting program, allows sources of air emissions to avoid permitting by using emission decreases to offset an increase that would otherwise need a permit. While largely procedural in nature, EPA’s decision to keep the rule is notable for a few reasons.
Continue Reading Biden EPA Decides to Keep a Trump EPA NSR Rule … For Now

At the end of September, the Environmental Protection Agency (EPA) issued yet another memorandum regarding emissions resulting from startup, shutdown, and malfunctions (SSM) at stationary sources of air pollutants, such as refineries, manufacturing facilities, and power plants. This newest memo announces a return to the policy EPA announced in 2015, when it asked 45 states and local jurisdictions to change their locally written and previously EPA-approved rules. EPA’s goal in 2015 was to eliminate state rules that allow relief from penalties for “SSM” emissions. In 2020, the Trump EPA issued a memo allowing such rules under certain circumstances, but the newest EPA memo puts those rules back on the chopping block. This post provides a brief recap of the long-running debate over SSM emissions and a look forward into what is to come under EPA’s latest policy shift.
Continue Reading Penalizing Unavoidable Air Emissions: The Fight Over SSM Continues

The Virginia Code requires a site suitability determination for all projects seeking air emission permits. Va. Code 10.1-1307.E. While this provision has been in place for decades, it has never received significant attention, and has historically been interpreted to require compliance with local zoning laws. In 2020, however, environmental groups used the law to successfully challenge a minor new source permit for a compressor station associated with an interstate natural gas pipeline. They argued that the site suitability analysis undertaken by the Virginia Department of Environmental Quality (DEQ) did not adequately address or consider environmental justice concerns, and the Fourth Circuit Court of Appeals agreed. Friends of Buckingham v. State Air Pollution Control Bd., 947 F. 3d 68 (4th Cir. 2020).
Continue Reading Virginia Initiates Regulatory Process to Consider Environmental Justice in Air Permitting Actions

The Congressional Review Act (CRA) was adopted in 1996 to give Congress a more powerful check on agency regulation that outpaces congressional intent. But now, for the first time, Congress has used that powerful authority in reverse. By disapproving a de-regulatory action — the rescission of the Subpart OOOOa new source methane standards for the oil and gas sector — Congress has brought a dead rule back to life. The birth, death, and now re-birth of Subpart OOOOa (often pronounced “quad-O-A”) raises several new and important questions.
Continue Reading Subpart OOOOa: What Happens When Congress Revives a Repealed Rule?

Now that we’re past July 4th and on the downhill side of summer, thoughts are turning to what EPA and the courts might do this fall with the many air quality and climate change issues before them. Here is a list of some of the most closely watched rulemakings on EPA’s recently released regulatory agenda and some key issues to watch for under the new Biden EPA. The ID numbers below for each agenda item contain links that will take you directly to the webpage tracking the status of the action.
Continue Reading What’s Next? EPA’s Air Agenda Highlights Priorities

The Third Circuit Court of Appeals issued a ruling June 21 that certain releases of air pollutants “subject to” Clean Air Act (CAA) requirements, even if not in compliance or specifically named in a permit, are exempt from release reporting requirements under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Clean Air Council v. United States Steel Corporation, No. 20-221 (3rd Cir. filed June 21, 2021). This ruling undercuts a longstanding EPA interpretation of the CERCLA reporting requirement that limited the exemption to only those releases actually in compliance with a federal CAA permit.
Continue Reading Appeals Court Upholds Expansive Interpretation of Clean Air Act Exemption from CERCLA Release Reporting

Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process Rule” (Cost-Benefit Rule), a requirement governing cost-benefit analyses for Clean Air Act (CAA) rulemakings, and on May 18, the agency revoked the “EPA Guidance; Administrative Procedures for Issuance and Public Petitions Rule” (Guidance Document Rule), which required all “significant” EPA guidance to undergo a public notice and comment process prior to issuance, modification, or withdrawal.
Continue Reading Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules

Although environmental justice (EJ) is not a new concept in the context of air permitting, the Biden administration’s increased focus on identifying and addressing disproportionate environmental impacts on low-income neighborhoods and communities of color is likely to spur an increase in EJ claims being raised as part of the public review process for both new air permits and permit renewals. Many, if not most, states do not have statutory or regulatory requirements dictating how EJ concerns must be considered in the air permitting context. Similarly, while there is a patchwork of EJ requirements applicable to federal agency actions, most are imposed by executive order and are not prescriptive in nature, meaning that there is no robust legal framework for considering EJ concerns in the air permitting context at the federal level either. Accordingly, while potential permittees and current permit holders seeking to renew or modify their air permits should be aware that there is an increased likelihood that EJ concerns may be raised by third parties or permitting agencies, there is little certainty about how these concerns will be implemented in the course of permit issuance.
Continue Reading Environmental Justice to Play Significant Role in Air Permitting Process Under Biden Administration