2009: A Year of Significant CAA Developments on All Fronts

• Date: 01 March 2010
• Author: Mary Beth Houlihan, Ari G. Altman, Johanna M. Hickman, and Kevin J. Klesh

40 ELR 10250 ENVIRONMENTAL LAW REPORTER 3-2010

C O M M E N T S

2009: A Year of Signif‌icant CAA

Developments on All Fronts

by Mary Beth Houlihan, Ari G. Altman, Johanna M. Hickman, and Kevin J. Klesh

Mary Beth Houlihan is a law clerk at Willkie Farr & Gallagher LLP. Ari G. Altman, Johanna M. Hickman, and Kevin J.

Klesh are associates at Willkie Farr & Gallagher LLP. A draft of this paper was originally distributed at the February 2010

ALI-ABA Course of Study on Environmental Law. e authors gratefully acknowledge the signicant contributions to

this paper by members of the Environment, Health, and Safety practice group at Willkie Farr & Gallagher LLP.

2009 was a dramatic year for the Clean Air Act (CAA).1

Under the Obama Ad ministration, t he U.S. Environ-

mental Protection Agency (EPA) took signicant steps

on many fronts. As widely expected, it issued an endanger-

ment nding with respect to greenhouse gases (GHGs) and

granted California’s waiver request. However, less expected,

was the new national automobile GHG emissions standard

that managed to ga rner the auto industry’s support. EPA

also nalized its Mandatory Reporting of Greenhouse Gases

Rule, which provided an important foundation for regulating

GHGs under both the CAA and any future climate change

legislation. e Agency, in fact, delivered its draft ru le on

regulating stationary sources under the CAA late in 2009.

In addition to addressing climate change, EPA has taken

the bold step of promising to review all six of the national

ambient air quality standards (NAAQS) by 2011. While the

CAA requires that these standards be reviewed every ve

years, some of them have not been revised since they were

rst established in 1971. EPA is also working to rewrite sev-

eral regulations that were struck down by the U.S. Court of

Appeals for the District of Columbia (D.C.) Circuit. Shortly

after President Obama took oce, the Agency also withdrew

or began reconsideration of a number of George W. Bush

Administration rulemakings, part icularly with respect to

new source review (NSR).

e year 2009 did not see as many challenges to existing

regulation under the CAA as in past years. However, there

was a continued level of activity in regard to climate change

lawsuits. 2010 will likely see an upward trend in such litiga-

tion. For example, the proposed rulemakings on GHG emis-

sions and NAAQS will have signicant impacts on a va riety

of interest groups. With the stake s raised a nd a wide variet y

of regulatory proposals on the table, 2010 should be another

year of signicant CA A developments.

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

I. Climate Change

EPA, President Obama, the U.S. Congress, a nd industry a ll

appear to prefer legislation regulating climate change to a

patchwork of EPA regulations attempting to achieve similar

goals. EPA expressed this sentiment when it issued both the

proposed and nal endangerment ndings. EPA emphasized

that it sti ll believes that legislation is the appropriate means

for regulating climate change.2 Specically, when issuing the

proposed rulemaking, EPA released the following statement:

“Notwithstanding this required regulatory process, both

President Obama and Administrator [Lisa] Jackson have

repeatedly indicated their preference for comprehensive leg-

islation to address this issue and create the framework for a

clean energy economy.”3 e Edison Electric Institute voiced

the concerns of industry groups, stating: “We may not know

for years the precise impact this would have on new and

existing power plants. is is a road we’d rather not go down,

but only Congress can steer things in a better direction.”4

After the proposed rule wa s announced, Chairman Edward

J. Markey (D-Mass.) of the House Energy and Environment

Subcommittee underlined these options when stating “it is

no longer a choice between doing a bill and doing nothing. It

is now a choice between regulation and legislation. EPA will

have to act if Congress does not.”5

While regulating climate cha nge under the C AA may be

a viable option, and EPA appears committed to moving for-

ward on this front, legislation would provide more exibility

to address both the complexity of the problem and to give a

voice to all the dierent interest groups involved. In 2009,

Congress took its boldest steps yet to passing such legislation.

2. , I-

EPA., Apr. 17, 2009 [hereinafter ].

3. News Release, U.S. Envtl. Prot. Agency, EPA Finds Greenhouse Gases Pose

reat to Public Health, Welfare/Proposed Finding Comes in Response to

2007 Supreme Court Ruling (Apr. 17, 2009), available at http://yosemite.epa.

gov/opa/admpress.nsf/0/0EF7DF675805295D8525759B00566924.

4. Id.

5. , supra note 2.

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