Under the federal Clean Air Act, new major sources of air pollutants and major modifications to existing sources are required to obtain preconstruction permits, known as PSD permits, even when locating in an area that attains the National Ambient Air Quality Standards (“NAAQS”). EPA’s proposed revisions to the NAAQS for fine particulate matter (“PM2.5”) would make obtaining the required permit far more difficult.
Continue Reading New Challenges to Permitting Under the Clean Air Act

Beginning with the inauguration of Ronald Reagan in 1983, each newly inaugurated president from a different political party than his predecessor has ordered the withdrawal from the Office of the Federal Register (OFR) of all pending regulations that have not yet been published.  86 Fed. Reg. 7425 (Jan. 28, 2021) (Biden); 82 Fed. Reg. 8346 (Jan. 24, 2017) (Trump); 74 Fed. Reg. 4435 (Jan. 26, 2009) (Obama); 66 Fed. Reg. 7702 (Jan. 24, 2001) (Bush); 58 Fed. Reg. 6074) (Jan. 25, 1993) (Clinton); 46 Fed. Reg. 11,227 (Feb. 16, 1981) (Reagan). The incoming presidents have used this approach to advance their policies as opposed to being constrained by the policies of their predecessors reflected in such “midnight rules.” The D.C. Circuit, in Humane Society v. U.S. Dept. of Agric., No. 20-5291 (D.C. Cir. July 22, 2022), has limited the rules that can be withdrawn under this long-standing approach. Continue Reading Humane Society v. U.S. Department of Agriculture: Has the D.C. Circuit Done More Than Protect Midnight Rules?

On April 6, 2022, the United States Environmental Protection Agency (EPA) published a proposed rule in the Federal Register that would build on its existing Cross-State Air Pollution Rule (CSAPR) program by limiting further the emission of nitrogen oxides (NOx) from stationary sources located in 26 states. 87 Fed. Reg. 20,036 (Apr, 6, 2022). The proposal would implement EPA’s 2015 National Ambient Air Quality Standards (NAAQS) for ozone of 70 parts per billion by imposing Federal Implementation Plans (FIPs) on specified states pursuant to its authority under the “good neighbor” requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act. This provision requires upwind states to prevent sources located within their borders from contributing significantly to nonattainment or interfering with maintenance of the NAAQS in downwind states.
Continue Reading EPA Proposes Groundbreaking New Transport Rule for Ozone Air Pollution

Last month, the Ninth Circuit Court of Appeals denied a petition for review brought by environmental non-governmental organizations (ENGOs) challenging EPA’s conclusion that the Phoenix-Mesa, Arizona metropolitan area, which had been designated nonattainment for a National Ambient Air Quality Standard (NAAQS) for ozone, had met that standard by the applicable deadline.  Bahr v. Regan, No. 20-70092, 2021 U.S. App. LEXIS 22333 (9th Cir. July 28, 2021).  Failure to have met the standard would have had implications in terms of additional air emission controls required in the area.
Continue Reading EPA’s Finding that Wildfires Did Not Preclude NAAQS Attainment is Upheld

The United States Environmental Protection Agency recently published a final rule on “EPA Guidance; Administrative Procedures for Issuance and Public Petitions.” 85 Fed. Reg. 66,230 (Oct. 19, 2020). The Guidance Rule clarifies the location on the web of certain EPA guidance; provides requirements for guidance development, including for development of particularly significant guidance; and specifies procedures for the public to petition for modification, withdrawal, or reinstatement of guidance. The Guidance Rule is EPA’s response to Executive Order 13891 by President Trump on Promoting the Rule of Law through Improved Agency Guidance Documents and related guidance from the Office of Management and Budget (OMB). The Executive Order and the OMB Guidance both emphasize the need for accessibility and transparency of the guidance process.  The provisions of the Guidance Rule – and their impact on accessibility and transparency– are discussed below.
Continue Reading EPA’s New Guidance Rule: Are Accessibility and Transparency Improved?

Recent press reports note that air quality has improved worldwide and in the United States during the ongoing pandemic. Shortly prior to the pandemic, though, stories lamented declining American air quality. What’s really going on?  Is the news good or bad?
Continue Reading Air Quality in the United States has Improved Dramatically since Enactment of the Clean Air Act

The US National Ambient Air Quality Standards (NAAQS) are the centerpiece of the US Clean Air Act (CAA) and establish allowable concentration levels for six “criteria air pollutants”: ozone, particulate matter, lead, carbon monoxide, nitrogen dioxide, and sulfur dioxide. The CAA requires the US Environmental Protection Agency (EPA) to review and, as appropriate, revise the NAAQS at least every five years, and EPA has, since 1970, regularly adopted increasingly stringent standards. Whether those revisions have gone far enough or too far has become a predictably contentious issue, with each review involving debates over science, the role of EPA’s Clean Air Science Advisory Committee (CASAC), the discretion of the EPA Administrator, and the format of the review process itself, among many other issues.
Continue Reading The New NAAQS Review Process Begins to Take Shape

When an adverse party challenges final rules that are favorable to particular companies, those companies and their trade associations sometimes question whether it is worth their time and effort to intervene on EPA’s side to help the Agency defend its action. A recent D.C. Circuit decision shows that sometimes an argument made by a Respondent-Intervenor can be decisive.
Continue Reading Why Should I Intervene?