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This report provides a selective overview of court decisions that historically have most shaped EPA's program under the Clean Air Act (CAA or Act). Court decisions described in the report deal with the following:
It is a truism that complex regulatory statutes cannot be fully understood solely by reading the statutory text. Among other sources, court decisions add substantial flesh to the statutory skeleton. This is emphatically true of the Clean Air Act (CAA), where hundreds of court decisions over more than four decades interpret the principal enactment in 1970 and its chief amendments in 1977 and 1990.
This report provides a selective overview of court decisions that historically have most shaped the program developed by thehave shaped the U.S. Environmental Protection Agency's (EPA's) implementation of the Clean Air Act (CAA or Act).1 The subjects these decisions cover are broad, because almost every major EPA rule has been challenged in court. Challenges to EPA actions (EPA) under the CAA.1 The universe of decisions from which those included here were selected is broad, resulting from the fact that almost every major EPA rule prompts the filing in court of a petition for review—either by those regulated under the rule seeking to invalidate or relax it, or by the "environmental" side seeking to make it more stringent, or by both. As the footnotes in this report show, these petitions for review are filed largely in the U.S. Court of Appeals for the D.C. Circuit, as required by the CAA (D.C. Circuit), as the CAA requires for challenges to "nationally applicable regulations."2 Where the claim is insteadClaims that EPA has failed to perform a nondiscretionary duty under the Act, such as meeting a statutory deadline, aare challenged through "citizen suit" must be suits" filed in a federal district courtcourts.3 Over the 4446 years of the modern CAA's existence, more than a dozen of these circuit and district court decisions on the Act have yielded Supreme Court opinions on appeal.
Several court decisions would have been discussed in this report had they not been superseded by CAA amendments that either codified or repudiated them. These are briefly noted in a postscript on pages 16-17This report also highlights several court cases currently being litigated that address a number of unresolved questions related to EPA's CAA authority.
A glossary of acronyms used in this report is provided on page 18 19.
The central construct of the CAA is the national ambient air quality standard (NAAQS), a maximum concentration for an air pollutant that all areas of the country must meet. Toward the goal of establishingTo establish NAAQSs, CAA Section 108 of the Act directs EPA to issue air quality criteria—documents assessing the scientific evidence on a pollutant's effects—for pollutants that "may reasonably be anticipated to endanger public health or welfare," and "the presence of which in ambient air results from numerous or diverse mobile or stationary sources ...."4 Section 109 then tellsrequires EPA to set primary NAAQSs at a level requisite to protect the public health, allowing an "adequate margin of safety," and secondary NAAQSs at a level requisite to protect the "public welfare" from any known or anticipated adverse effects.5 Finally, Section 110 requires states to adopt state implementation plans to attain or maintain each NAAQS (see following section).6
EPA hasIn the 1970s, EPA established NAAQSs for six pollutants—all of them in the 1970s, commonly referred to as "criteria" pollutants.7 The agency has not added any pollutants to the list since then. But, although it is required to review the existing standards at five-year intervals and promulgate revisions if appropriate.8 These reviews have raised continuing issues among stakeholders, including states, industrial and other sources of pollution, and nongovernmental organizations (NGOs) in the health and environmental fields, particularly over the role of cost and feasibility in determining the level at which standards should be set. In directing EPA to set and revise the NAAQSs, Sections 108 and 109 make no reference to the cost or feasibility of attaining the standards—in contrast to other CAA sections where cost, feasibility, or the role of demonstrated technology are specifically required to be considered.
The silence of Sections 108 and 109 as to cost and feasibility led to a number of cases, all of them holding that NAAQSs are to be set which held that EPA must set NAAQSs without regard to the cost of achieving them or their technological feasibility. The early leading decision istheir cost or technological feasibility. In Lead Industries Ass'n v. EPA, where the D.C. Circuit in 1980 addressed the primary and secondary NAAQSs for lead.9 The court held the argument for,9 holding that requiring EPA to consider cost and feasibility in setting NAAQSs to bewas "totally without merit."10 Specifically rejected was the argument that the "adequate margin of safety" required by Section 109 to be factored into primary NAAQSs requires EPA to consider costs and feasibility. Persuasive to the court was the fact that where the CAA intendedthat the CAA expressly provides for EPA to factor in costs and feasibility, it expressly so provided, and that even if the technology to achieve a NAAQS did not currently exist, the CAA was of a "technology forcing" character.11
In 20002001, in Whitman v. American Trucking Ass'ns,12 the Supreme Court unanimously affirmed Lead Industries as to the impermissibility of considering, finding it impermissible to consider costs in setting primary NAAQSs. The Whitman challengers had offered a new argument:argued that the high costs of imposing a stringent primary NAAQS might produceinjure health injury by closing down whole industries and impoverishing the workers and consumers dependent on them. This effect on health, the challengers contended, had to be considered too. The Court was unimpressedThe Whitman challengers contended that EPA had to consider this effect on health, too. The Court disagreed, pointing out that CAA Section 110(f)(1) allowed EPA to waive compliance deadlines for stationary sources in certain circumstances, and that, as noted in Lead Industries, numerous CAA provisions allow EPA to take compliance costs into account.13 That being so, the Court refused to infer from the ambiguous language of Section 109 an authority for EPA to consider costs that elsewhere in the Act had been granted expressly.
NAAQSs define what level of air quality must be attained or maintained, but it is to the states that responsibility falls to translate NAAQSs into emission limits for specific stationary sources. After a NAAQS is promulgated or revised, each state is required under CAA Section 110 to submit to EPA within three years a state implementation plan (SIP)State Implementation Plans
The CAA directs EPA to translate NAAQSs into emission limits for specific stationary sources. After EPA promulgates or revises NAAQS, CAA Section 110 requires each state to submit a state implementation plan (SIP) to EPA within three years.14 SIPs specify what mix of federal, state, and local air pollution control measures will be implementedthe state will implement in order to reach or maintain attainment of the NAAQSs. To be approved by EPA, the SIP must satisfy a long list of requirements in Section 110(a)(2),15 including that it.15 For example, the SIP must contain enforceable emission limitations, timetables for compliance, air quality monitoring, provisions addressing interstate pollution, and so on.16
Because Section 110(a)(2) does not require that SIPs
One factor left out of the Section 110(a)(2) list, however, is that the state-submitted SIP be economically and technologically feasible. Based on that omission, the Supreme Court concluded in Union Electric Co. v. EPA that infeasibility may not be considered by EPA inEPA may not consider infeasibility when approving or disapproving a submitted SIP.16SIP.17 Further, itthe Supreme Court held that the states may submit SIPs more stringent than the CAA requires and EPA must approve them if they meet the Section 110(a)(2) factors.17 Softening these holdings, the Court pointed to other ways that feasibility claims were relevant to the CAA program—such as when presented to a state agency formulating a SIP (so long as the NAAQS is met), or as a state-issued variance submitted to EPA as a plan revision, or possibly in the state courts.18 In Indiana & Michigan Elec. Co. v. EPA, the U.S. Court of Appeals for the Seventh Circuit added that such claims are also relevant in federal enforcement actions, as in setting compliance schedules and assessing an appropriate money penalty.19
The states' primary responsibility for distributing the pollution reduction burden among the stationary sources in that state has a corollary. As held in Michigan v. EPA, the CAA does not allow EPA to18 In addition, as held in Michigan v. EPA, EPA may not condition SIP approval on a state's adoption of any specific control measure under the CAA.19.20
Finally, under Indiana & Michigan Elec.tric Co., EPA does not have Co. instructs that EPA's action in approving or disapproving a submitted SIP does not require the agency to prepare an environmental impact statement under the National Environmental Policy Act (NEPA) when approving or disapproving a submitted SIP.20 .21 (Courts have held EPA actions generally to be exempt from this requirement, sinceNEPA requirements, because the agency's mission of protecting the environment duplicates that of NEPA.)22
After a NAAQS is set or revisedEPA sets or revises a NAAQS, the governor of each state, using available monitoring data, must submit to EPA a list identifying each air quality control region in the state as either attainment, nonattainment, or unclassifiable for the pollutant in question.2322 After reviewing these submissions, and often after negotiating over the boundaries of the listed areas, EPA formally promulgates a list of nonattainment areas.2423 Affected states are then required to submit SIPs or SIP revisions specifying what mix of federal, state, and local air pollution control measures will be implemented for each of the areas to reach or maintain the NAAQS.25
In many states, particularly in the Northeast, air quality is so affected by emissions from other states (referred to as "transported" air pollution) that it is difficult or impossible for the state to demonstrate how all areas in the state will reach attainment. To assist these downwind states, the CAA contains several provisions dealing with transported air pollution. The most important (and most frequently litigated) is Section 110(a)(2)(D),2625 the so-called "good neighbor" provision. Section 110(a)(2)(D)(i)(I) requires that a state prohibit stationary sources within the state from emitting air pollutants in amounts that will "contribute significantly" to NAAQS nonattainment, or "interfere with maintenance" of a NAAQS, in any other state. These measures are to be included in the SIPs submitted by the states to EPA.27States must include such measures in the SIPs they submit to EPA.26 When EPA determines that existing SIPs will need tomust be revised to satisfy the good neighbor provision (or other CAA requirements), it must issueissues a "SIP call," sometimes to many states at once.2827
Litigation over the good neighbor provision generally has involved emissions of nitrogen oxides (NOx), particulates, and sulfur dioxide (SO2), all of which can remain in the atmosphere and travel long distances from the point of emission. These substances are not only pollutants in their own right; they also contribute (through atmospheric reactions) to the formation of ozone, particulates, acid deposition, and other widespread regional pollution problems.29 Issues raised in litigation28 Litigation over the good neighbor provision include several with broad import for EPA's program: how onehas addressed how EPA defines when a state "contribute[s] significantly" to another state's pollution; what role cost-effectiveness can play in identifying control measures; whether regional cap-and-trade systems can substitute for emission control requirements imposed at specific sources; and the respective roles of EPA and the states in identifying required controls.30
The key Section 110(a)(2)(D) cases begin in 2000 with Michigan v. EPA,31 involving a NOx SIP call. The D.C. Circuit held that nothing in 29
In 2000, the D.C. Circuit held in Michigan v. EPA30 that nothing in Section 110(a)(2)(D) bars EPA from considering costs in applying the provision.32 So.31 Consequently, EPA had acted lawfully when it determined that a state would no longer be contributing "significantly" to a downwind state's NAAQS nonattainment if it cut backthe state reduced the relevant emissions by the amount that could be eliminated by what EPA termedusing "highly cost-effective controls" (those that eliminate a ton of the relevant pollutant for less than $2,000 per ton).33 And, the court said,32 The court found that EPA may apply this standard uniformly to all the covered states, no matter the amount of each state's contribution.3433
North Carolina v. EPA3534 involved a challenge to EPA's Clean Air Interstate Rule (CAIR), issued in 2005.3635 CAIR sought to reduce SO2 and NOx precursor emissions in 28 states in order to reduce nonattainment of the NAAQSs for fine particulate matter and ozone in downwind states. The D.C. Circuit, however, found CAIR to be flawed.3736 Most important to the court, itsCAIR's emissions trading program, though aimed at reducing emission-control costs as approved in Michigan, did not assure some "measurable" emission reduction in each upwind state.3837 Emissions reduction by the upwind states collectively was not enough to satisfy Section 110(a)(2)(D).3938 Second, the court said, EPA must give independentindependent effect to the "interfere with maintenance" prohibition in Section 110(a)(2)(D)—not, as CAIR did, as a prohibition triggered only after the "contribute significantly" prohibition was triggered.4039
EPA's effort to remedy the CAIR deficiencies identified in North Carolina led it to issue the Cross-State Air Pollution Rule, also known as the Transport Rule or CSAPR, in 2011.41 The new40 This rule addresses the same pollutants and the same states as did CAIR. Under itCSAPR, an upwind state is deemed to "contribute significantly" to downwind nonattainment to the extent its pollution produces more than 1% of the NAAQS concentration in at least one downwind state and could be eliminated cost-effectively. Through modelling, EPA set the total amount of pollution an upwind state could produce in a given year. This second EPA effort also was found by the D.C. Circuit to be inconsistent with Section 110(a)(2)(D),4241 but this time itthe decision was reversed by the Supreme Court—in. In EPA v. EME Homer City Generation, L.P., the High Court upheld the Transport Rule.43CSAPR.42 First, the Court found no fault with the fact that EPA, having found the relevant SIPs to be inadequate, had along with the Transport RuleCSAPR promulgated federal implementation plans allocating each state's total allowed emission amount among sources of that pollutant within the state. The CAA, held the Court, does not require that states be given a second opportunity to file a SIP after EPA has quantified the state's emissions budget.4443 Second, the Court held that nothing in the Good Neighbor Provision compelled the "cost-blind" interpretation of the D.C. Circuit.4544 Rather, it concluded, EPA's allocation of emission reductions among upwind states based on cost-effectiveness is a permissible, workable, and equitable reading of the Provision.46
CAA Section 1114746 directs EPA to develop federal "standards of performance" for new, modified, and reconstructed and modified stationary sources of air pollution—, called New Source Performance Standards (NSPSs). NSPSs are nationally uniform, lessening the incentive for companies to "shop" for locations with less stringent requirements. "Standards of performance" are defined as emission standards reflecting the amount of emission reduction "achievable" through the use of the "best system of emission reduction" (BSER) that is "adequately demonstrated," "taking into account" cost and nonair quality impacts.48
Most of the phrases just quoted have been litigated, beginning in the CAA's early years. And they may be relitigated soon: currently proposed EPA regulations limiting CO2 emissions from new coal-fuel-fired power plants are based on the agency's controversial view that carbon capture and sequestration is an "adequately demonstrated" control technology for such plants.49 Case law holds that "adequately demonstrated" does not necessarily imply that any existing source of the type proposed for an NSPS is able to meet the NSPS. Rather, Portland Cement Ass'n v. Ruckelshaus says that Section 111 "looks toward what may fairly be projected for the regulated future, rather than the state of the art at present ...."5048 Still, Lignite Energy Council v. EPA cautions that "EPA may not base its determination that a technology is adequately demonstrated or that a standard is achievable on mere speculation or conjecture ...."5149 The agency may compensate for the absence of emissions data in a new source category by, for example, "extrapolation of a technology's performance in other industries."5250 Where EPA is able to show that existing sources of the type proposed for an NSPS can meet the NSPS, National Lime Ass'n v. EPA instructs that those existing sources must be representative of the industry as a whole.5351 Finally, courts have noted that Section 111 is silent as to the weight to be given the cost and nonair quality impacts of a control technology, the section saying only that they shall be "taken into account."5452 Given that silence, Lignite Energy Council and other D.C. Circuit decisions have granted EPA much discretion: "EPA's choice [of best adequately demonstrated technology] will be sustained unless the environmental or economic costs of using the technology are exorbitant."55
As to what standards are "achievable," Essex Chemical Corp. v. Ruckelshaus describes an achievable standard as "within the realm of the adequately demonstrated system's efficiency and which, while not at a level that is purely theoretical or experimental, need not necessarily be routinely achieved within the industry prior to its adoption."56
At the same time or after it issues Section 111(b) NSPSs, EPA must establish, under certain circumstances, emission guidelines for existing sources in that category pursuant to Section 111(d).60 These guidelines establish binding requirements that states are required to address when they develop plans to regulate the existing sources in their jurisdictions.61 Similar to Section 110 of the CAA, which requires states to develop and revise implementation plans to achieve EPA's NAAQS and subsequent changes to those standards, Section 111(d) directs EPA to establish state plan "procedures."62 On the same day that EPA issued the Carbon Pollution Standards for new, existing, and reconstructed power plants under CAA Section 111(b), the agency finalized emission guidelines to regulate CO2 emissions from existing fossil-fuel power plants under Section 111(d). These guidelines, commonly referred to as the Clean Power Plan (CPP),63 have been among the more controversial environmental regulations that EPA has ever promulgated, as reflected by the multi-party litigation over the CPP in the D.C. Circuit.64 One of the key issues in the litigation is whether EPA has the authority under the CAA to go beyond the "fenceline" of an individual regulated source and consider shifting from fossil fuel to natural gas-fired power and renewable energy in the interconnected electric grid to establish the BSER.65 Another issue in the CPP litigation relates to the interpretation of two differing amendments of Section 111(d)(1)(A) that were enacted into law, which sets forth exclusions to EPA's authority to issue Section 111(d) emission guideline rules.66 On September 27, 2016, the en banc (full court) D.C. Circuit heard oral argument in the CPP litigation.67 Judicial decisions in this and the litigation over the Carbon Pollution Standards for new power plants will likely establish the boundaries of EPA's authority under CAA Section 111.The CAA seeks not only attainment of NAAQSs in dirty-air areas; it also aims to limit air quality deterioration in areas cleaner than the NAAQSs require54 The question on what standards are considered "adequately demonstrated" is central in the litigation over EPA's regulations limiting CO2 emissions from new power plants.55 Twenty-five states—led by North Dakota and West Virginia—have filed petitions in the D.C. Circuit challenging EPA's final NSPS for carbon dioxide (CO2) emissions from new, modified, and reconstructed fossil fuel-fired power plants under CAA Section 111(b), which it calls the "Carbon Pollution Standards."56 The states have been joined by other petitioners including a labor union, a rural electric cooperative association, several other fossil-fuel-related companies and utilities, and several industry and trade groups.57 One of the primary issues raised by the petitioners is whether the technologies on which EPA based the standards of performance, including carbon capture and sequestration/storage (CCS), have been "adequately demonstrated" or are the "best system" under Section 111(b).58 A three-judge panel is to hear oral argument for this case on April 17, 2017.59
Emission Guidelines Under CAA Section 111(d)
5768 For new major emitting facilities and new major modifications, this program requires new source review—in particular, preconstruction permits conditioned on installation of the best available control technology (BACT).5869
BACT is determined by the states, with review by EPA, and thus may vary somewhat from state to state. However, BACT must be at least as stringent as the NSPS and Section 112 (hazardous air pollutant) standards for the pollutant,5970 and the PSD new source review program uses the same definitions as to what constitutes a major source, what is a modification, etc., as the NSPS program.6071 Because states can impose more stringent requirements than NSPS, and may need to do so for nonattainment areas to demonstrate attainment, there may be states or areas with less stringent and more stringent emission requirements. However, by imposing NSPS and hazardous air pollutant standards as a floor in all states, this disparity is minimized.
The early D.C. Circuit decision in Alabama Power Co. v. Costle remains the fullest judicial exposition of new source review in PSD areas.6172 Among other things, the decision held that new source review is required only for sources to be constructed in PSD areas, not in other areas based on a source's projected adverse impacts in a PSD area in another state.6273 Alabama Power also held that the PSD sections of the CAA impose no requirement for post-construction monitoring of emissions.6374 Finally, the decision approved EPA's use of the "bubble concept" to define which changes in a stationary source constitute a "modification." (See later section on "Bubble Concept.")
The Supreme Court has weighed in on the federal-state relationship in determining BACT. In Alaska Dep't of Environmental Conservation v. EPA,6475 the high court said that the CAA authorizes EPA to block construction in a PSD area of a major emitting facility, despite the state's issuance of a PSD permit, when EPA finds that the state's determination of BACT for that facility is inconsistent with the CAA definition of BACT.6576 The state had argued that the Act limits EPA to reviewing whether the state's permit contained a BACT determination.66
WhetherIn 2014, the Supreme Court took up the issue of whether PSD new source review applies in the special case of greenhouse gas (GHG) emissions has been a vexing issue. EPA had long . EPA had argued that once its regulations limiting GHG emissions from new motor vehicles6778 took effect in 2011, it was required to apply PSD new source review to GHG emissions from stationary sources as well. Its argument had some force: the PSD portion of the Act defines the new sources to which it applies as those emitting more than a certain amount of "any air pollutant"79"68 and requires BACT for "each air pollutant subject to regulation under this act."6980 In 2007, the Supreme Court had squarely held that GHGs are indeed "air pollutants" under the CAA.7081 The problem with this argument, however, was administrative unwieldiness. EPA's view concededly meant that tens of thousands of new and modified stationary sources would now require PSD permits, owing to the low amounts of pollutionstatutory emissions thresholds that trigger those permitting requirements and the huge number of sources that emit above-threshold quantities of CO2, the primary GHG. Moreover, millions of existing stationary sources—office buildings, large apartment buildings, hospitals, etc.— would require Title V operating permits,7182 for the same reason. But EPA proposed to take care of this problem with its "Tailoring Rule,"72 under which PSD and Title V permitting would be gradually phased in, starting with the largest emitters.
Notwithstanding EPA's syllogistic argument for eventual full coverage of GHGs under PSD and Title V, the Supreme Court took a different tack in Utility Air Regulatory Group v. EPA.7384 As the Court explained, just because "air pollutant" as used in the CAA generally covers GHGs does not mean it includes GHGs every place it is used—especially since EPA has historically adopted narrow readings of "air pollutant" in specialized CAA contexts.7485 Moreover, the administrative unwieldiness of demanding PSD and Title V permits for so many sources argued strongly, in the Court's view, against a GHG-inclusive reading of those programs.7586 Nor did the Court allow EPA, through its Tailoring Rule, to phase in the low statutory emission thresholds in an effort to ease the daunting administrative workload, since the Act states the thresholds in absolute numerical terms.7687
Yet the Court softened its ruling by holding that when new source review, with its BACT requirement, is required because a new or modified source emits a conventional pollutant, then such review can be demanded for GHG emissions from that source as well.7788 According to the Solicitor General's numbers submitted in the case, such "anyway" sources, so called because they are covered independently of their GHG emissions, account for roughly 83% of American stationary source GHG emissions. Had EPA's Tailoring Rule survived, EPA would have reached only 3% more of those emissions. SoThus, on the primary UARG holding, EPA was largely victorious, even though its Tailoring Rule was rejected.
As mentioned, NSPSs and new source review in PSD areas apply not just to new sources, but also to existing sources that undergo modifications (NSPS) or major modifications (PSD).7889 The CAA defines "modification" as "any" physical or operational change in a stationary source "that increases the emissions of any air pollutant or results in the emission of any air pollutant not previously emitted."7990 A modification is subject to the same requirements as a new source.
The CAA definition of "modification" has been interpreted by EPA and state pollution control agencies. Most importantlyimportant, EPA since 1974 has construed the term not to include "routine maintenance, repair, and replacement" (RMRR) at a stationary source8091—despite the CAA's inclusion of "any" physical or operational change that increases emissions in its definition of modification.8192 Courts have long accepted this agency-created exemption as reasonable.8293 Given the powerful financial incentives for a source to avoid application of stringent NSPSs, utilities have argued for an expansive reading of the RMRR exemption, extending even to major renovations.8394
The seminal RMRR judicial pronouncement remains Wisconsin Elec. Power Co. v. Reilly,8495 referred to as the WEPCO decision. WEPCO, decided in 1990 by the Seventh Circuit, was the first time a court held that an electric power plant renovation was not RMRR and thus triggered NSPS and PSD new source review.85 The legacy of the decision is in its establishing that 96 The case established that determining whether the RMRR exemption applies to an existing-source renovation depends on a case-by-case weighing of four factors: the resulting increase in a plant's life expectancy, and the project's cost, nature, and magnitude.8697 These factors are routinely cited by courts even today.87
The other major RMRR decision is New York v. EPA,8899 rejecting a 2003 EPA effort to expand the exception. In its Equipment Replacement Rule of that year, the agency stated that the replacement of a plant's components is categorically within the RMRR exception if the new equipment does not exceed 20% of the replacement value of the process unit and does not change its basic design parameters.89100 The courtD.C. Circuit found this rule overbroad—inconsistent with the CAA definition of "modification" as including "any" physical change that increases emissions.90101 Phrased another way, the court found the rule too broad to fit within the de minimis rationale for the RMRR exception.
In Environmental Defense v. Duke Energy Corp.,91102 the Supreme Court took on the question of what constitutes a "modification," a threshold issue for application of the RMRR exception under either NSPS or PSD new source review. The Court held that even though the CAA defines "modification" in its PSD portion to mean the same as the NSPS definition of the term,92 EPA103 EPA did not have to define the term the same in each CAA program, owing to the different statutory contexts.93104 EPA, the Court held, can define the definitional phrase "any change in the method of operation of a stationary source"94105 by different measures of the amount of pollutant emitted. To this day EPA defines the emissions increase required by the definition of "modification" differently in the NSPS and PSD contexts: in terms of emissions amount per hour for NSPS,95106 in terms of emissions amount per year for PSD.96107
In three different CAA programs—NSPS, PSD, and nonattainment areas—the Act attaches regulatory consequences to modifications at an emissions source that increase the amount of an emitted regulated pollutant.97108 In the CAA's early years, thea central question ragedwas whether the determination as to whether an emissions increase occurred focused on each individual unit at a plant, or instead on the net aggregate effect of contemporaneous changes within the same source.98109 The latter view was dubbed the bubble concept since it imagines a huge dome—that is, a bubble—placed over a facility, with a single emissions point at the top. Because the amount of emissions at the top of the dome is unaffected by emission increases at individual plant units that are offset by emissions decreases elsewhere in the plant, the bubble image was used to support measuring emission amounts on an aggregate plantwide basis. The bubble concept is preferred by industry because it allows a plant to avoid stringent CAA regulation triggered by emission increases by finding offsetting emission decreases.
By regulation, EPA adopted the bubble concept in each of the three programs listed above, and on each occasion was challenged. In ASARCO v. EPA, the D.C. Circuit in 1978 found the CAA barred the bubble concept for determining when a "modification" to an existing stationary source occurred for purposes of triggering application of NSPSs.99110 (As noted earlier, a modification to an existing source triggers NSPSs the same as construction of a new source.) The court saw EPA's bubble regulations, which defined "stationary source" to include any "combination of ... facilities,"100111 to be irreconcilable with the CAA definition of "stationary source" as "any building, structure, facility, or installation."101112 Nor was the court moved by EPA's argument that the flexibility afforded by the bubble concept was needed because the cost of bringing modified existing facilities into compliance with NSPSs was, EPA claimed, much greater than the cost of bringing new facilities into compliance.102113
The following year, the D.C. Circuit took the opposite tackfurther addressed the bubble concept. In Alabama Power Co. v. Costle, the same court that found the bubble concept unacceptable for determining whether NSPSs apply held that the bubble concept is required in PSD areas.103114 The alternate view, based on individual units within a plant, was, in the court's view, "unreasonable and contrary to the expressed purposes of the PSD provisions of the Act" and "extremely burdensome."104115 The court distinguished its earlier holding, in ASARCO, by pointing out differences in EPA's NSPS and PSD bubble regulations and noting the differing statutory purposes of the two programs.105
Finally, in 1984, the Supreme Court found EPA's use of the bubble concept in areas not attaining a NAAQS to be grounded on a permissible reading of the CAA. In Chevron, U.S.A. v. NRDC,106117 the Court found the Act's language and legislative history to be sufficiently vague as to use of the bubble concept in nonattainment areas as to warrant deference to EPA's interpretation. The only relevant definition, said the Court, is the general CAA definition of "major stationary source," which equates "major stationary source" with "major emitting facility."107118 The Court found it within "common English usage to take a reference to a major facility or a major source to connote an entire plant as opposed to its constituent parts."108119
Loosely speaking, "hazardous air pollutants" under the CAA are thosepollutants that are more toxic than the pollutants addressed by NAAQSs.109120 For this reason, they are regulated separately inpursuant to Section 112 of the Act, which directs EPA to set National Emission Standards for Hazardous Air Pollutants (NESHAPs). Section 112 is among the most litigated sections of the CAA.110121 In the 1970s and 1980s, EPA was slow to implement the section, largely because it found its requirements to be unworkable.111122 By 1990, the agency had set standards for only seven hazardous air pollutants (and not all sources of even these seven), despite informal acknowledgement that hundreds of substances might merit emission controls.112 It123 EPA was challenged frequently in court for its failure to act.113
As enacted in 1970, Section 112 said EPA was directed EPA to issue NESHAPs that protected public health with an "adequate margin of safety." In the minds ofFor several EPA Administrators, under both Democratic and Republican Presidents, this language posed a dilemma.114125 Many of the substances that might merit regulation under Section 112 were possible or probable human carcinogens.115126 As there is no known exposure level at which exposure to a carcinogen is considered safe, this implied that emissions of such substances should be completely eliminated (though the D.C. Circuit rejected this view).116
This and other issues raised in litigation during the 1980s led to a completeCongress to rewrite ofcompletely Section 112 in the 1990 CAA amendments.117128 First, instead of requiring the Administrator to identify hazardous air pollutants one by one as before the 1990 amendments, the amendments insert in the statute itself a list of 187 pollutants to be controlled by EPA, the 1990 amendments listed 187 hazardous air pollutants (HAPs) for EPA to regulate—a list EPA may then revise.118129 Second, instead of initially requiring protection ofEPA to protect public health with an adequate margin of safety as before the amendments, the new version requires, the 1990 amendments require the Administrator, as a first step, to impose technology-based emission standards, called "floors," for both new and existing sources. For "major sources," these standards must require use of "maximum achievable control technology" (MACT);130;119 for other sources, termed "area sources" by the Act, EPA may elect to impose more lenient standards.120131 In the second, risk-based stage of regulation, EPA must review any residual health risks not eliminated by the foregoing standards, and report them to Congress.121132 If Congress does not act, EPA must impose standards providing an ample margin of safety to protect public health, or a stricter standard if needed (considering costs) to prevent adverse environmental effects.122133 These are called "beyond the floor" standards.
AmbiguitiesBecause of ambiguities in the CAA definition of "major source," " led to the D.C. Circuit decisionheld in National Mining Ass'n v. EPA.123 Most importantly, the court held134 that EPA may determine if a facility is a major source by aggregating all sources in a contiguous plant site under common control; itEPA is not restricted to aggregating only sources within a single source category or under the same Standard Industrial Classification Code.124135 Elsewhere, the court spoke toaddressed the CAA directive that EPA, in determining what facilities are major sources, calculate whether a facility's "potential to emit" meets the Act's threshold quantities only after "considering controls."125 That directive, said the court,136 The court found that the directive does not allow EPA to limit itself to controls that are federally enforceable.126137
Does Section 112 requireIn National Lime Ass'n v. EPA, the D.C. Circuit found that Section 112 requires EPA to create a NESHAP for a hazardous air pollutant in a source category even if no sources in the category use technological controls for that pollutant? Yes, said the D.C. Circuit in National Lime Ass'n v. EPA.127.138 Nothing in the statute, the court said, suggests that EPA may set emission levels only for those listed hazardous air pollutants that are currently controlled with technology.128139 To the contrary, it pointed outthe D.C. Circuit noted, the CAA requires EPA to set emission standards for each category or subcategory of major sources of hazardous air pollutants listed for regulation.129
In NRDC v. EPA,130141 the D.C. Circuit wrestled with an ambiguous CAA instruction as to second-stage risk-based standards. The statute says that if the initial, technology-based standard for a source category does not reduce lifetime excess cancer risk to less than 1 in 1 million, EPA "shall promulgate standards ... for such source category."131 As is evident,142 Because this instruction says nothingis silent about the stringency of those standards. Finding this language and is "deliberately ambiguous,"132143 the court upheld EPA's reaffirmation of its existing technology-based standard for the source category in question under which no individual would face an excess lifetime cancer risk of greater than 100 in 1 million. The court noted that 100 in 1 million was EPA's interpretation of "ample margin of safety" before the 1990 amendments, and that those amendments expressly disavow any intent to change the agency's pre-1990 interpretation.133 That same disavowal led the court to uphold144 The court similarly upheld EPA's consideration of costs in setting the risk-based standards, since the agency had considered costs before 1990.134
Although EPA may consider cost when setting second-stage risk-based standards, whether EPA may consider costs when determining if it is "appropriate and necessary" to regulate power plants under Section 112 has been subject to significant litigation. In Section 112, Congress created a special procedure for applying the NESHAP program to power plants.146 Congress directed EPA to study the public-health hazards power plant HAP emissions pose after taking into account other CAA requirements controlling power plant emissions and allowed EPA to regulate HAP emissions from power plants under Section 112 only if EPA found that "regulation [was] appropriate and necessary" after considering the results of the study.147 In 2012,148 EPA found that it was "appropriate and necessary" to regulate coal- and oil-fired power plants under Section 112 because mercury emissions from power plants (the largest domestic source of mercury emissions) present significant hazards to public health and the environment, and the CAA's other requirements had failed to sufficiently reduce the health risks.149 In this finding, EPA interpreted the statutory phrase "appropriate and necessary" to preclude it from considering cost when deciding whether to regulate power plants under Section 112.150 EPA then issued the Mercury and Air Toxics Standard (known as the "MATS rule"), which limits emissions of mercury and other toxics emitted by power plants.151 Twenty-three states, along with numerous industry groups, sought review of EPA's MATS rule, arguing, among other things, that EPA acted unlawfully by refusing to consider cost in making its "appropriate and necessary" finding.152 In a per curiam opinion, a divided panel of the D.C. Circuit upheld EPA's decision, holding that EPA's refusal to consider costs was a permissible interpretation of the phrase "appropriate and necessary" when it determined to regulate power plants under Section 112.153 The court reasoned that Section 112(n)(1) on its face neither requires nor prohibits EPA from considering costs, and that "[t]hroughout section 112, Congress mentioned costs explicitly where it required EPA to consider them."154 The court made clear that once the "appropriate and necessary" determination is made, EPA must consider costs if it seeks to set emission standards more stringent than those dictated by the statutory MACT standard.155 In 2015, the Supreme Court reversed Michigan v. EPA.156 The Court held that EPA's failure to consider costs as a part of its "appropriate and necessary" finding was an unreasonable interpretation of the CAA.157 Although the Court agreed that EPA's interpretation of the ambiguous term "appropriate and necessary" was entitled to deference under Chevron U.S.A., Inc. v. NRDC, the Court concluded that EPA had "strayed far beyond [the bounds of reasonable interpretation] when it read § 7412(n)(1) to mean that it could ignore cost when deciding whether to regulate power plants."158 The Court explained that Read naturally in . . . context, the phrase "appropriate and necessary" requires at least some attention to cost. . . . Agencies have long treated cost as a centrally relevant factor when deciding whether to regulate. . . . [I]t is unreasonable to read an instruction to an administrative agency to determine whether "regulation is appropriate and necessary" as an invitation to ignore cost.159 The dissenting Justices agreed that EPA was unreasonable in not taking into account costs in adopting the regulations, but they concluded that EPA had satisfied this requirement when it considered costs when setting the actual emissions standards.160In the absence of congressional action establishing a regulatory regime specifically for greenhouse gas (GHG) 145
135165 In 1999, advocates petitioned EPA to use this authority to identify GHGs as air pollutants that potentially endanger public health and welfare and, as a next step, to control GHG emissions from new motor vehicles under CAA Section 202.136166 Motor vehicles are the source of about one-fourth of all U.S. GHG emissions.137167 In 2003, EPA denied the petition, arguing that the CAA did not give it authority to regulate GHG emissions, and that, even if it did, the agency would not do so for policy reasons.138168
This suit led to the first, and most important, of the Supreme Court's three decisions on GHG emissions. In 2007, the Court in Massachusetts v. EPA remanded EPA's 2003 denial of the petition, holding 5-4 that, contrary to EPA's position, "air pollutant" in the CAA is broad enough to include GHGs139169 and that once EPA finds that GHG emissions potentially endanger public health and welfare it may not decline to regulate them on policy grounds.140170 The Massachusetts decision led EPA in 2009 to a pair of "endangerment findings" under Section 202: that GHGs currently in the atmosphere potentially endanger public health and welfare, and that new motor vehicle emissions cause or contribute to that pollution.141171 Based on those endangerment findings, EPA under Section 202 has issued GHG emission standards for model year 2012-2016 cars and light trucks,142172 for 2014 and later model year medium- and heavy-duty vehicles,143 and173 for 2017-2025 model year cars and light trucks.144
The Supreme Court's second decision on GHG emissions, American Electric Power Co. v. Connecticut, did not chiefly concern EPA's program under the CAA.145 Rather it held (unanimously) that the authority given EPA to regulate GHGs under the CAA, as through NSPSs under Section 111, means that federal judges no longer retain,174 for 2018 and later model truck trailers,175 and for 2021-2022 model year medium- and heavy-duty engines and vehicles.176
The Supreme Court's second decision on GHG emissions, American Electric Power Co. v. Connecticut,177 unanimously held that EPA's authority to regulate GHGs through NSPSs under CAA Section 111 means that federal judges no longer have authority under the federal common law of nuisance to impose their own GHG emission limitations on sources.146 178 More important, American Electric Power is important for the CAA GHG program, however, in making clear that the inclusion ofclarified that including GHGs under CAA Section 202, announced inas provided by Massachusetts v. EPA, also extends to NSPSs under CAA Section 111(b).147 In so clarifying179 As such, the Court eliminated that issue from the debate over EPA's proposed Section 111 regulations setting NSPSs for CO2 from new fossil fuel-fired power plants.148180 And because such NSPSs are a legal prerequisite for EPA's use of Section 111(d) to regulate CO2 from existing fossil fuel-fired power plants,149181 the Court's ruling also eliminated this authority issue from the debate over EPA's proposalrule restricting GHGs from those sources.150182
The Supreme Court's third decision on GHG emissions, Utility Air Regulatory Group v. EPA, was discussed above in the "New Source Review" section. Briefly, that decision rejected EPA's argument that its regulation of new-motor-vehicle GHG emissions (this section, above) required it as a legal matter to apply two CAA permitting programs for stationary sources to GHG emissions from those sources. The Court did allow, however, that EPA could impose one of these programs, requiring installation of Best Available Control Technology on new and modified stationary sources in PSD areas, to GHG emissions from certain stationary sources: those that emit conventionalNew Source Review pollutants in amounts sufficient to come under the program independently. See the "New Source Review" section for further details.
In TVA v. Whitman, a frequently used EPA enforcement tool,EPA's use of the administrative compliance order (ACO), was successfully challenged.151183 Under the CAA, EPA has four enforcement options when it believes a violation of the statute has occurred: ask the Department of Justice (DOJ) to file a court action for civil penalties,: ask the departmentDOJ to do the same for criminal penalties,; conduct an EPA adjudication and impose civil penalties,; and finally, issue an ACO.152184 All of these options, save ACOs, give the accused party the right to challenge EPA's understanding of the law or the facts in court before penalties can be imposed. By contrast, noncompliance with an ACO allows EPA toEPA may seek potentially severe civil penalties, even or criminal penalties, for that noncompliance, despite the fact that the ACO is issued for noncompliance with an ACO even though EPA issues ACOs based on "any information available" to EPA and without anand absent adjudication. Such penalties are in addition to penalties for violations of the Act itself. In reviewing thean ACO noncompliance case, a court is limited to the question of whether the ACO wasparty complied with the ACO.
In TVA, the U.S. Court of Appeals for the Eleventh Circuit struck down this scheme as "repugnant to the Due Process Clause of the Fifth Amendment."153185 Pre-enforcement review by a court, it held, must be made available to the recipient of the order.154186 Nor can EPA "save" the statute by conducting a voluntary adjudication, as before its internal Environmental Appeals Board.155187 In the Circuit's view, that would relegate Article III district courts to insignificant tribunals serving merely as forums for EPA to conduct show-cause hearings simply on whether the ACO wasparty complied with the ACO.188.156 Parenthetically, the Supreme Court later rendered an identical ruling—that ACOs are subject to pre-enforcement court review—but in connection with the Clean Water Act and solely on statutory, rather than constitutional, grounds.157
ACO: administrative compliance order BACT: best available control technology BSER: best system of emission reduction CAA: Clean Air Act CAIR: Clean Air Interstate Rule CO2: carbon dioxide CPP: Clean Power Plan EPA: Environmental Protection Agency GHG: greenhouse gas HAP: hazardous air pollutant MACT: maximum achievable control technologyEPA received a boost to its enforcement efforts, however, in189
In Dow Chemical Co. v. United States.158 There,,190 the Supreme Court held that CAA Section 114159191 authorizes EPA to use aerial photography in checking on emission sources.160192 Moreover, the Court rejected the necessity underthat the Fourth Amendment forrequired a warrant for such surveillance, on the theory that expectations of privacy outside an industrial plant do not come upare not akin to those surrounding a residential home.193
Glossary of Acronyms
to those surrounding a residential home.161
The CAA contains many provisions adopted by amendments that responded to court decisions interpreting the Act. These provisions either codified the court decision, if Congress agreed with it, or repudiated the decision, if Congress did not. Such superseded decisions were important in their day as prods to congressional action, but are of little interest today and so are noted only briefly here.
Probably the foremost example is the 1972 decision discerning in the CAA an implicit prohibition against allowing air quality better than required by national standards to deteriorate down to those standards—the so-called "prevention of significant deterioration" (PSD) policy.162 Four years later, Congress turned implicit to explicit: it provided a statutory charter for the "PSD program" EPA developed in response to the 1972 decision, in the form of CAA Title I, Part C.163
Another superseded court decision construed the CAA phrase "will endanger" in 1976 to allow EPA to regulate gasoline additives on the basis of suspected, but less than certain, adverse effects164—critically important to EPA given that total certainty as to the effects of any pollutant is rare, particularly at low concentrations. To ensure the permanence of this "precautionary principle" in the CAA, Congress codified it in 1977 by using the phrase "may reasonably be anticipated to endanger" instead of "will endanger" throughout the CAA as the threshold for agency action.165
Still other superseded court decisions: (1) construed the CAA as banning the use of tall stacks and intermittent controls as a means to achieve national air quality standards,166 a ban made explicit in the 1977 CAA amendments;167 (2) interpreted the CAA standard for hazardous air pollutant emissions as not requiring zero emissions when a no-risk threshold does not exist for a pollutant,168 an interpretation made moot when the standard was transformed into a technology-based standard by the 1990 amendments;169 and (3) ruled that the CAA subjects federal facilities only to substantive state air pollution standards, not procedural ones,170 repudiated when the 1977 amendments stated that both applied.171
ACO: administrative compliance order
BACT: best available control technology
CAA: Clean Air Act
CAIR: Clean Air Interstate Rule
CO2: carbon dioxide
EPA: Environmental Protection Agency
GHG: greenhouse gas
NAAQS: national ambient air quality standard
NESHAP: national emission standard for hazardous air pollutant
NOx: nitrogen oxides
NEPA: National Environmental Policy Act
NSPS: new source performance standard
PSD: prevention of significant deterioration
RMRR: routine maintenance, repair, and replacement
SIP: state implementation plan
SO2: sulfur dioxide
Author Contact Information
Acknowledgments
This report was originally written by [author name scrubbed], Legislative Attorney, who has retired from CRS. [author name scrubbed], Legislative Attorney, is and [author name scrubbed] are now handing legal inquiries relating to this subject.
[author name scrubbed], Specialist in Environmental Policy, CRS Resources, Science, and Industry Division, with the assistance of Brandon Toth, CRS American Law Division summer intern, also contributed to this report.
| 1. |
42 U.S.C. §§ 7401-7671q. |
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| 2. |
CAA § 307(b); 42 U.S.C. § 7607(b). In contrast, petitions for review of EPA actions that are only "locally or regionally applicable" must be filed in the U.S. Court of Appeals for the "appropriate" circuit, though even these actions must be filed in the D.C. Circuit if "based on a determination of nationwide scope or effect." Id. |
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| 3. |
CAA § 304(a); 42 U.S.C. § 7604(a). |
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| 4. |
CAA § 108(a)(1); 42 U.S.C. § 7408(a)(1). |
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| 5. |
CAA § 109(b); 42 U.S.C. § 7409(b). "Welfare" is a term of art, defined in the CAA to include at a minimum "effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being ...." CAA § 302(h); 42 U.S.C. § 7602(h). |
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| 6. |
CAA § 110(a)(1); 42 U.S.C. § 7410(1)(1). |
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| 7. |
NAAQSs have been set for ozone, particulate matter, carbon monoxide, sulfur dioxide, nitrogen dioxide, and lead. 40 C.F.R. pt. 50. |
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| 8. |
CAA § 108(d)(1); 42 U.S.C. § 7408(d)(1). |
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| 9. |
647 F.2d 1130 (D.C. Cir. 1980). |
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| 10. |
Id. at 1148. |
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| 11. |
Id. at 1149. |
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| 12. |
531 U.S. 457 (2001). |
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| 13. |
For example, the Court noted CAA Section 202(a)(2), specifying that motor vehicle emission standards can take effect only "after such period as the [EPA] Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance ...." 42 U.S.C. § 7521(a)(2). |
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| 14. |
CAA § 110(a)(1); 42 U.S.C. § 7410(a)(1). |
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| 15. |
42 U.S.C. § 7410(a)(2). |
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| 16. | |
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Id. 17.
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427 U.S. 246, 256 (1976). Several CAA provisions noted in the Union Electric decision have been amended since, but it has never been suggested that these amendments undermine the Court's essential holdings. |
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|
Id. at 265. |
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| 18. |
Id. at 266-267. |
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| 19. |
509 F.2d 839, 844-845 (7th Cir. 1975). |
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213 F.3d 663, 687 (D.C. Cir. 2000). |
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509 F.3d at 842. |
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See, e.g., Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 359 (3d Cir. 1972). |
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CAA § 107(d)(1)(A); 42 U.S.C. § 7407(d)(1)(A). For a list of air quality control regions, see 40 C.F.R. pt. 81. |
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|
CAA § 107(d)(1)(B); 42 U.S.C. § 7407(d)(1)(B). |
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CAA § 110(a)(1)-(2); 42 U.S.C. § 7410(a)(1)-(2). |
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CAA § 7410(a)(2)(D). |
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CAA § 110(a)(2); 42 U.S.C. § 7410(a)(2). |
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|
CAA § 110(k)(5); 42 U.S.C. § 7410(k)(5). Besides Section 110(a)(2)(D), the CAA also addresses interstate pollution through Section 126, 42 U.S.C. § 7426. Section 126(b) allows a state or political subdivision to petition EPA to make a "finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 110(a)(2)(D)(ii)." If EPA makes the finding, the source or sources in question cannot be constructed or can no longer operate, except under emission limitations and a compliance schedule prescribed by EPA. Supplementing these provisions, CAA Section 115 creates a mechanism for dealing with emissions in the United States that might endanger health or welfare in a foreign country. 42 U.S.C. § 7415. |
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|
See |
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See, e.g., North Carolina v. EPA and Michigan v. EPA decisions discussed in immediately following paragraphs. |
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213 F.3d 663 (D.C. Cir. 2000). |
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Id. at 679. |
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Id. at 680. |
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Id. at 679-680. |
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531 F.3d 896 (D.C. Cir. 2008). |
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70 Fed. Reg. |
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|
Though initially vacating the CAIR rule, the D.C. Circuit changed its mind some months later, leaving CAIR in effect "until it is replaced by a rule consistent with our opinion." North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). |
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531 F.3d at 908. |
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Id. |
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Id. at 910. |
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76 Fed. Reg. |
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696 F.3d 7 (D.C. Cir. 2012). |
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134 S. Ct. 1584 (2014). |
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Id. at 1600-1602. |
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Id. at 1583. |
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Id. at 1603-1609. |
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42 U.S.C. § 7411. |
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CAA § 111(a)(1); 42 U.S.C. § 7411(a)(1). |
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| 49. |
79 Fed. Reg. 1430 (January 8, 2014). |
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486 F.2d 375, 391 (D.C. Cir. 1973). |
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198 F.3d 930, 934 (D.C. Cir. 1999). |
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Id. |
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627 F.2d 416, 432-433 (D.C. Cir. 1980). |
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See, e.g., New York v. Reilly, 969 F.2d 1147, 1150 (D.C. Cir. 1992). |
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|
Lignite Energy Council, 198 F.3d at 933. |
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486 F.2d 427, 433-434 (D.C. Cir. 1973). |
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| 58. |
CAA § 165(a)(4); 42 U.S.C. § 7475(a)(4). |
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| 59. |
CAA § 169(3); 42 U.S.C. § 7479(3). |
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| 60. | See generally docket for North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed Oct. 23, 2015); Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units; Final Rule, 80 Fed. Reg. 64,510 (Oct. 23, 2015) [hereinafter NSPS Final Rule]. For further information on the legal challenge to the NSPS Final Rule, see CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed] and [author name scrubbed]. See, e.g., State Pet'rs' Opening Br., North Dakota v. EPA, Nos. 15-1381 (D.C. Cir. filed Oct. 13, 2016). Order, North Dakota v. EPA, No. 15-1381 (D.C. Cir. Dec. 2, 2016). CAA Section 111; 42 U.S.C. § 7411(d)(1). Id. Id.; CAA Section 110; 42 U.S.C. § 7410. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Final Rule, 80 Fed. Reg. 64,661, 64,663 (October 23, 2015). For additional background, see CRS Report R44341, EPA's Clean Power Plan for Existing Power Plants: Frequently Asked Questions, by [author name scrubbed] et al. See docket for West Virginia, et al. v. EPA, No. 15-1363 (D.C. Cir. docketed Oct. 23, 2015). For further information on the legal challenge to the CPP, see CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed] and [author name scrubbed]. See generally Opening Br. of Pet'rs on Core Legal Issues, at 29-61 (filed Feb. 19, 2016). For further information on the legal issues raised in the CPP litigation, see CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed] and [author name scrubbed]. See "A Selection of Arguments on the Merits: Section 112 Exclusion" section of CRS Report R44480, Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, by [author name scrubbed] and [author name scrubbed] for additional information on this issue. Order at 2, West Virginia v. EPA, No. 15-1363 (D.C. Cir. May 16, 2016). CAA §§ 165-169; 42 U.S.C. §§ 7475-7479. CAA § 165(a)(4); 42 U.S.C. § 7475(a)(4). CAA § 169(3); 42 U.S.C. § 7479(3). |
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|
636 F.2d 323 (D.C. Cir. 1979). |
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Id. at 364-366. |
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Id. at 373. |
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540 U.S. 461 (2004). |
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Id. at 492-493. The CAA definition of BACT is in Section 169(3), 42 U.S.C. § 7479(3). |
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540 U.S. at 488. |
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|
75 Fed. Reg. |
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|
CAA § 169(1); 42 U.S.C. § 7479(1) (definition of "major emitting facility"). Emphasis added. |
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|
CAA § 165(a)(4); 42 U.S.C. § 7475(a)(4). Emphasis added. |
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|
Massachusetts v. EPA, 549 U.S. 497 (2007). |
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|
CAA § 502; 42 U.S.C. § 7661a. |
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|
75 Fed. Reg. |
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|
134 S. Ct. 2427 (2014). |
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|
Id. at 2439-2442. |
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|
Id. at 2442-2444. Said the Court: "the PSD program and Title V are designed to apply to, and cannot be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens." Id. at 2443. |
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Id. at 2444-2446. |
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Id. at 2444-2449. |
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|
In the parlance of the CAA, "new source" is defined to include both new and modified existing sources. CAA § 111(a)(2); 42 U.S.C. § 7411(a)(2). |
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|
CAA § 111(a)(4), 42 U.S.C. § 7411(a)(4), defines "modification" for purposes of the NSPS section of the CAA. CAA § 169(2)(C), 42 U.S.C. § 7479(2)(C), specifies that that definition applies as well within the PSD portion of the statute. |
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|
40 C.F.R. § 60.14(e) (as to applicability of NSPS); 40 C.F.R. § 52.21(b)(2)(iii)(a) (as to applicability of PSD program). |
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|
CAA § 111(a)(2); 42 U.S.C. § 7411(a)(2). |
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|
See, e.g., Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901,906 (7th Cir. 1990). |
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|
See, e.g., United States v. Ohio Edison Co., 276 F. Supp. 2d 829, 840-849 (S.D. Ohio 2003). |
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|
893 F.2d 901 ( |
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|
Id. at 912. |
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|
Id. at 910-911. |
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|
See, e.g., United States v. Duke Energy Corp., |
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|
443 F.3d 880 (D.C. Cir. 2006). |
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|
68 Fed. Reg. 61,248, 61,270 (Oct. 27, 2003). See also 70 Fed. Reg. 33,838 (June 10, 2005). |
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|
443 F.3d at 890. |
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|
549 U.S. 561 (2007). |
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|
The NSPS definition is at CAA § 169(2)(B); 42 U.S.C. § 7479(2)(B). |
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|
549 U.S. at 574. |
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|
Id. at 578-579. |
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|
40 C.F.R. § 60.14(b). |
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|
40 CFR §§ 52.21(b)(2)(i), 52.21(b)(23)(i). |
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|
As noted in the preceding section of this report, applicability of NSPSs is triggered by, among other things, "modifications" of existing stationary sources. "Modification" is defined for NSPS purposes as a physical or operational change in an existing stationary source that "increases" the amount of emissions therefrom. Both the PSD and nonattainment portions of the CAA are also triggered by modifications of existing stationary sources, and both incorporate the NSPS definition of the term. CAA § 168(2)(C), 42 U.S.C. § 7479(2)(C) (PSD); CAA § 171(4), 42 U.S.C. § 7501(4) (nonattainment). |
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|
For a summary of the rulemaking proceedings, see ASARCO v. EPA, 578 F.2d 319, 322-325 (D.C. Cir. 1978). |
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|
Id. at 326. |
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|
Id. at 324 (emphasis added). |
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|
CAA § 111(a)(3); 42 U.S.C. § 7411(a)(3). |
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|
578 F.2d at 328. |
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|
636 F.2d 323, 400-403 (D.C. Cir. 1979). |
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|
Id. at 401. |
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|
Id. at 397. |
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|
467 U.S. 837 (1984). |
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|
CAA § 302(j); 42 U.S.C. § 7602(j). |
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|
467 U.S. at 860. |
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|
A more formal definition of hazardous air pollutants is at CAA Section 112(d)(2), 42 U.S.C. § 7412(d)(2). |
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|
42 U.S.C. § 7412. |
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|
See generally Hearing Before the Subcomm. on Oversight and Investigations, House Comm. on Energy and Commerce, 98th Cong., 2d Sess. 21 (1984) (statement of William D. Ruckelshaus, Administrator, EPA). |
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|
See S. Rep. No. 101-228, at 3 (1989). |
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|
See, e.g., Sierra Club v. Gorsuch, 551 F. Supp. 785 (N.D. Cal. 1982) (radionuclides); New York v. Gorsuch, 554 F. Supp. 1060 (S.D.N.Y. 1983) (arsenic). |
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|
See Hearing Before the Subcomm. on Oversight and Investigations, supra note |
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|
Id. |
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|
NRDC v. U.S. EPA, 824 F.2d 1146 (D.C. Cir. 1987) (en banc). |
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|
P.L. 101-549, 104 Stat. 2531 (1990). |
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|
CAA § 112(b); 42 U.S.C. §7412(b). |
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|
CAA § 112(d)(2); 42 U.S.C. § 7412(d)(2). "Major source" is defined in CAA Section 112(a)(1). |
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|
CAA § 112(d)(5); 42 U.S.C. § 7412(d)(5). "Area source" is defined in CAA Section 112(a)(2) as any stationary source of hazardous air pollutants that is not a "major source." |
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|
CAA § 112(f); 42 U.S.C. § 7412(f). |
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|
CAA § 112(f)(2)(A); 42 U.S.C. § 7412(f)(2)(A). |
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|
59 F.3d 1351 (D.C. Cir. 1995). |
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|
Id. at 1359. |
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|
CAA § 112(a)(1); 42 U.S.C. § 7412(a)(1). |
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|
59 F.3d at 1364. |
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|
233 F.3d 625, 633-634 (D.C. Cir. 2000). |
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|
Id. at 633. |
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|
Id. |
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|
529 F.3d 1077 (D.C. Cir. 2008). |
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|
CAA § 112(f)(2)(A); 42 U.S.C. § 7412(f)(2)(A). |
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|
529 F.3d at 1081. |
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|
Id. at 1082. CAA § 112(f)(2)(B); 42 U.S.C. § 7412(f)(2)(B). |
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|
529 F.3d at 1084. |
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|
CAA § |
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|
|
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|
| ||||||||||||||||||||||||||||||||
| 138. |
68 Fed. Reg. 52922 (2003). |
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| 139. |
549 U.S. 497, 532 (2007). |
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| 140. |
Id. at 534. |
|||||||||||||||||||||||||||||||
| 141. |
74 Fed. Reg. 66496 (2009). |
|||||||||||||||||||||||||||||||
| 142. |
75 Fed. Reg. 25323 (2010). |
|||||||||||||||||||||||||||||||
| 143. |
76 Fed. Reg. 57106 (2011). |
|||||||||||||||||||||||||||||||
| 144. |
77 Fed. Reg. 62624 (2012). |
|||||||||||||||||||||||||||||||
| 145. |
131 S. Ct. 2527 (2011). |
|||||||||||||||||||||||||||||||
| 146. |
Id. at 2535-2540. |
|||||||||||||||||||||||||||||||
| 149.
|
|
National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, 77 Fed. Reg. 9,304, 9,363 (Feb. 16, 2012). 150.
|
|
Id. at 9326–27. 151.
|
|
National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, 77 Fed. Reg. 9304, 9363 (Feb. 16, 2012). 152.
|
|
White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1236 (D.C. Cir. 2014) (per curiam). 153.
|
|
Id. at 1241. 154.
|
|
Id. at 1237. 155.
|
|
Id. at 1240. 156.
|
|
135 S. Ct. 2699 (2015). 157.
|
|
Id. at 2707. 158.
|
|
Id. 159.
|
Id. at 2706 |
|
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|
|
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| 149. |
This linkage between CAA Sections 111(b) and 111(d) is evident from the fact that Section 111(d) applies only to emissions of air pollutants "to which a standard of performance under [section 111] would apply if such existing source were a new source." CAA § 111(d)(1); 42 U.S.C. § 7411(d)(1). |
|||||||||||||||||||||||||||||||
| 150. |
79 Fed. Reg. 34830 (2014) |
|||||||||||||||||||||||||||||||
| 151. |
336 F.3d 1236 (11th Cir. 2003). |
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| 152. |
CAA § 113(a); 42 U.S.C. § 7413(a). |
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| 153. |
336 F.3d at 1258. |
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| 154. |
Id. |
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|
|
Supplemental Finding that It is Appropriate and Necessary to Regulate Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units; Final Rule, 81 Fed. Reg. 24,420 (Apr. 25, 2016). 162.
|
|
Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir. docketed Apr. 25, 2016). 163.
|
|
Opening Br. of State and Industry Pet'rs, at 41-55 (filed Nov. 18, 2016). 164.
|
|
Br. of Resp't EPA, at 56-65 (filed Jan. 18, 2017). 165.
|
|
CAA § 302(g); 42 U.S.C. § 7602(g). 166.
|
|
Massachusetts v. EPA, 549 U.S. 497, 510 (2007). 167.
|
|
Sources of Greenhouse Emissions, http://www.epa.gov/climatechange/ghgemissions/sources.html. 168.
|
|
68 Fed. Reg. 52,922 (Sept. 8, 2003). 169.
|
549 U.S. 497, 532 (2007) |
|
|||||||||||||||
|
Id. at 534. |
||||||||||||||||||||||||||||||||
|
| ||||||||||||||||||||||||||||||||
| 158. |
476 U.S. 227 (1986). |
|||||||||||||||||||||||||||||||
| 159. |
42 U.S.C. § 7414. |
|||||||||||||||||||||||||||||||
| 160. |
476 U.S. at 239. |
|||||||||||||||||||||||||||||||
| 161. |
Id. at 238-239. |
|||||||||||||||||||||||||||||||
| 162. |
Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972) (CAA goal in Section 101 "to protect and enhance the quality of the Nation's air" imposes duty on EPA to reject state implementation plans that do not include provisions against significant deterioration of air quality currently cleaner than national standards), aff'd (D.C. Cir. 1972) (unpublished), aff'd by equally divided vote sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973). |
|||||||||||||||||||||||||||||||
| 172.
|
|
75 Fed. Reg. 25,323 (May 7, 2010). 173.
|
|
76 Fed. Reg. 57,106 (Sept. 15, 2011). 174.
|
|
77 Fed. Reg. 62,624 (Oct. 18, 2012). 175.
|
|
81 Fed. Reg. 73, 478 (Oct. 25, 2016). 176.
|
|
Id. 177.
|
|
564 U.S. 410 (2011). 178.
|
|
Id. at 424. 179.
|
|
Id. at 424-26. 180.
|
|
79 Fed. Reg. 1,430 (Jan. 8, 2014). 181.
|
|
This linkage between CAA Sections 111(b) and 111(d) is evident from the fact that Section 111(d) applies only to emissions of air pollutants "to which a standard of performance under [section 111] would apply if such existing source were a new source." CAA § 111(d)(1); 42 U.S.C. § 7411(d)(1). 182.
|
79 Fed. Reg. 34,830 (Sept. 25, 2014). | P.L. 95-95 (CAA Amendments of 1977) § 127. |
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|
|
||||||||||||||||||||||||||||||||
|
|
CAA § 113(a); 42 U.S.C. § 7413(a). 185.
|
|
336 F.3d at 1258. 186.
|
|
Id. 187.
|
|
Id. at 1259. 188.
|
|
Id. |
See CAA Sections 108 (national ambient air quality standards), 202 (emission standards for new motor vehicles), 211 (controls on fuel additives), 213 (emission standards for new nonroad vehicles), and 231 (emission standards for aircraft engines). |
||||||||||||||||||||||
| 166. |
See, e.g., Bunker Hill Co. v. EPA, 572 F.2d 1286 (9th Cir. 1977). |
|||||||||||||||||||||||||||||||
| 167. |
|
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