CHAPTER 10 MAKING THE CLEAN AIR ACT WORK: THE PATH TO CONTROLLING CLIMATE POLLUTION
| Jurisdiction | United States |
(Jan 2015)
MAKING THE CLEAN AIR ACT WORK: THE PATH TO CONTROLLING CLIMATE POLLUTION
Senior Managing Attorney
Sierra Club
San Francisco, California
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JOANNE SPALDING is Senior Managing Attorney for the Sierra Club in San Francisco, California, where she has worked for more than a decade. She focuses on litigation related to energy and transportation, and has worked on cases ranging from protecting children from highway air pollution to preventing oil and gas drilling on pristine lands. Recently, she has concentrated her efforts on the fight against new coal plants. She served as the Sierra Club's lead counsel in the Florida coal plant cases. Ms. Spalding previously worked in private practice at the law firm of Adams, Broadwell in San Francisco. She holds a B.A. from Northwestern University and a J.D. from the University of California, Hastings College of the Law. She served as a judicial law clerk to the Honorable Melvin Brunetti of the U.S. Court of Appeals for the Ninth Circuit.
(with assistance from Greg L. Johnson and Stephen Wiegand, Liskow and Lewis, New Orleans)
I. Introduction
As climate change accelerates apace, efforts to regulate the air pollution that causes it trudge slowly but surely along. Non-governmental organizations ("NGOs") first petitioned EPA to use its authority under the Clean Air Act ("CAA") to regulate climate pollution over fifteen years ago, after the U.S. Senate failed to ratify the Kyoto Protocol. Ten years, two Administrations, and one crucial Supreme Court decision later, EPA eventually issued a finding that greenhouse gases ("GHGs") endanger public health and welfare and then adopted GHG emission standards for motor vehicles. And five years after that, following the collapse of Congressional efforts to enact cap and trade legislation, a withdrawn regulatory proposal, and a lengthy stakeholder process, EPA finally seems poised to regulate the nation's largest sources of GHGs. The original impetus for EPA's climate actions came from rulemaking petitions and lawsuits, but the twin imperatives of a rapidly warming planet and a CAA mandate to impose limits on the pollution causing it must drive the scope and ambition of EPA's efforts.
Nevertheless, litigation remains an important tool to prompt EPA to act quickly and effectively to curb GHGs. This paper addresses the effort to induce EPA to issue performance standards for the two largest industrial source categories of GHGs - fossil fuel-fired electric generating units ("EGUs" or power plants) and oil and gas sources. After summarizing the relevant CAA provisions, this paper discusses the power plant and oil and gas performance standard rulemakings and related NGO challenges.
II. Summary of Relevant Clean Air Act Provisions
A. New Source Performance Standards
Section 111(b) of the CAA, 42 U.S.C. § 7411(b), directs EPA to set standards of performance for industrial sources of nonhazardous air pollutants. These standards apply to all new and modified sources of air pollution in a listed source category and are known as new source performance standards ("NSPS").1 Section 111(b)(1)(A) directs EPA to publish and, from time to time, revise, a list of source categories that, in the Administrator's judgment, cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public
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health or welfare.2 EPA must then propose performance standards for each source category within one year after the category's listing.3 Finally, the CAA directs EPA to review and revise, if appropriate, each standard every eight years.4
A "standard of performance" must:
reflect[] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated. 5
The D.C. Circuit has stated that Section 111 "directs EPA to set specific and rigorous limits on the amounts of pollutants that may be emitted from any 'new source' of air pollutants."6 In enacting Section 111, Congress intended "to induce, to stimulate, and to augment the innovative character of industry in reaching for more effective, less costly systems to control air pollution."7 The D.C. Circuit has noted that NSPS "should be stringent in order to force the development of improved technology."8 Section 111 "`looks toward what may be fairly projected for the regulated future, rather than the state of the art at present."'9
"Adequately demonstrated" does not mean that all existing sources are able to meet the requirement,10 nor does it require the available technology to be in active use at the time of the rulemaking.11 The D.C. Circuit has explained that:
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An achievable standard is one which is 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.12
Courts have applied a reasonableness standard in determining whether a "system of emission reduction" is achievable and has been adequately demonstrated:13
An adequately demonstrated system is one which has been shown to be reasonably reliable, reasonably efficient, and which can reasonably be expected to serve the interests of pollution control without becoming exorbitantly costly in an economic or environmental way. 14
EPA is to consider the costs of achieving emissions reductions, along with non-air-quality health and environmental impacts and energy impacts. EPA's determination "will be sustained unless the environmental or economic costs of using the technology are exorbitant."15
Where it is not feasible for EPA to prescribe or enforce a performance standard, EPA must promulgate standards that reduce emissions through design, equipment, work practice, or operations - or a combination of those - that reflect the best technological system of continuous emission reduction that is adequately demonstrated.16
B. Existing Source Emission Guidelines
Section 111(d) of the CAA addresses regulation of existing sources.17 Specifically, Section 111(d) establishes a federal-state partnership for establishing performance standards for existing sources to which a standard would apply if the source were a new source, for emissions of those air pollutants that are not regulated through National Ambient Air Quality
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Standards or as hazardous air pollutants.18 Like the standards for new sources, performance standards for existing sources must be based on "the best system of emission reduction which ... the [EPA] Administrator determines has been adequately demonstrated."19
Section 111(d) Implementing Regulations, which EPA promulgated in 1975, establish a process for adoption and submittal of state plans, allocating responsibility for the various steps in this process to EPA or the states.20 First, concurrently upon or after proposal of standards of performance for the control of a designated air pollutant from new sources, EPA must issue a draft guideline document containing information pertinent to the control of the designated pollutant from existing sources.21 The guideline document must include, among other information, an "emission guideline that reflects the application of the best system of emission reduction (considering the cost of such reduction) that has been adequately demonstrated for designated facilities, and the time within which compliance with emission standards of equivalent stringency can be achieved."22 Next, each state must adopt and submit to EPA a plan establishing standards of performance or "emission standards" for the designated pollutant which, as a general rule, shall not be less stringent than the corresponding emission guideline.23 Finally, EPA must approve the states' plans, or issue a plan for any state that fails to submit a satisfactory plan, or that fails to submit a plan within the time prescribed.24
C. Judicial Review and Citizen Suit Provisions
Section 307(d) of the CAA governs rulemaking proceedings and provides for judicial review of the resulting regulations.25 NSPS are within the ambit of CAA Section 307(d).26 Challenges to NSPS may only be brought in the U.S. Court of Appeals for the District of Columbia Circuit, because they are "nationally applicable" regulations.27 A challenge to an
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NSPS must be based on "an objection to a rule . . . which was raised with reasonable specificity during the period for public comment (including any public hearing)."28 Interested parties wishing to raise objections that were impracticable to raise during the public comment period, or parties wishing to raise objections that are based on grounds arising after the close of the public comment period, may also petition the EPA Administrator for reconsideration of the regulation or action.29
The CAA's "citizen suit provision" allows interested parties to sue EPA for failure to "perform any act or duty . . . which is not discretionary."30 Failure to perform a nondiscretionary duty also includes the Agency's unreasonable delay in performing a nondiscretionary duty.31 At least 60 days before filing suit in a U.S. District Court under the citizen suit provision, the party threatening to sue EPA must notify the Administrator of its intent so that EPA has the opportunity to correct the failure to act.32
III. 2006 Revision of Power Plant Performance Standards and Subsequent Challenge
In 2003, Sierra Club and...
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