Saturday, July 12, 2008

Tangle of air pollution regulations affecting energy

Federal court decisions from 2005 through 2008, unlike some from earlier years, indicate that without persuasive evidence attempts to weaken, subvert or avoid environmental regulations affecting energy production will be overturned and indicate that enforcement of regulations will be upheld.

Four Court of Appeals decisions and two Supreme Court decisions changed the landscape. An Administration seeking to obstruct regulations had resorted to wordsmithing and legalisms. A southern, coal-fired power-plant operator seeking to avoid regulations had persuaded southern courts to do the same.

The power-plant operator's case was sent back for enforcement. The Environmental Protection Agency was instructed to investigate regulating carbon dioxide. The attempts to weaken or subvert air pollution regulations were rejected, striking out seven actions of the U.S. Environmental Protection Agency from 2002 through 2005 and restoring earlier regulations.

New York, et al., v. Environmental Protection Agency
Court of Appeals for the District of Columbia [3rd] Circuit
No. 02-1387, June 24, 2005, 413 F.3d 3
"In 1977, Congress amended the Clean Air Act (CAA or 'the Act') to strengthen the safeguards"
"major stationary sources undertaking modifications...process known as “New Source Review” (NSR)"
"petitioners now challenge this 2002 [NSR] rule, which departs sharply from prior rules"
"EPA erred in promulgating the Clean Unit applicability test, which measures emissions increases by looking to whether 'emissions limitations' have changed"
"Congress directed the agency to measure emissions increases in terms of changes in actual emissions"
"EPA also erred in exempting from NSR certain Pollution Control Projects (PCPs) that decrease emissions of some pollutants but cause collateral increases of other"
"we vacate the provisions...regarding the Clean Unit applicability test and Pollution Control Projects"

New York, et al. v. Environmental Protection Agency
Court of Appeals for the District of Columbia [3rd] Circuit
No. 03-1380, March 17, 2006, 443 F.3d 880
"Equipment Replacement Provision (“ERP”)...amends the Routine Maintenance, Repair, and Replacement Exclusion (“RMRR”) from NSR requirements"
"Under section 111(a)(4) of the Clean Air Act, sources that undergo 'any physical change' that increases emissions are required to undergo the NSR permitting process."
"ERP would allow sources to avoid NSR when replacing equipment notwithstanding a resulting increase in emissions"
"because it violates the Act, we vacate the ERP"

Massachusetts v. Environmental Protection Agency
Supreme Court of the United States
No. 05–1120, April 2, 2007, 549 U.S. 497
"organizations petitioned the Environmental Protection Agency (EPA) to begin regulating...carbon dioxide"
"EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it"
"Court of Appeals...judges agreed that the EPA Administrator properly exercised his discretion"
"EPA has offered no reasoned explanation...Its action was therefore 'arbitrary, capricious"
"The judgment of the Court of Appeals is reversed"

Environmental Defense, et al., v. Duke Energy Corp., et al.
Supreme Court of the United States
No. 05-848, April 2, 2007, 549 U.S. 561
"Duke Energy Corporation replaced or redesigned...coal-fired electric generating units"
"the United States filed this enforcement action"
"the District Court entered summary judgment for Duke on all PSD claims...The Fourth Circuit affirmed"
"The Fourth Circuit’s reading of the PSD regulations amounted to the invalidation of the PSD regulations"
"The judgment of the Court of Appeals is vacated"

New Jersey, et al. v. Environmental Protection Agency
Court of Appeals for the District of Columbia [3rd] Circuit
No. 05-1097, February 8, 2008
"petitions for review of...rules regarding the emission...from electric...generating units (EGUs)"
"first rule [Delisting rule] removes coal- and oil-fired EGUs from the...sources...regulated under section 112 of the Clean Air Act"
"second rule [CAMR] establishes total mercury emissions limits for States and certain tribal areas"
"Clean Air Mercury Rule [CAMR]"
"Petitioners contend that the Delisting Rule is contrary to the plain text and structure of section 112"
"in section 112(c)(9)...Congress limit[ed] EPA’s discretion to remove sources...from the section 112(c)(1)"
"EPA can point to no persuasive evidence suggesting that section 112(c)(9)’s plain text is ambiguous"
"Because coal-fired EGUs are listed sources under section 112, regulation of existing coalfired EGUs’ mercury emissions under section 111 is prohibited"
"the court grants the petitions and vacates both rules"

North Carolina v. Environmental Protection Agency
Court of Appeals for the District of Columbia [3rd] Circuit
No. 05-1244, July 11, 2008
"Petitioner North Carolina challenges CAIR’s programs for pollution-trading"
"Clean Air Interstate Rule [CAIR]"
"North Carolina contests the lack of reasonable measures in CAIR to assure that upwind states will abate their unlawful emissions."
"EPA...never measured the 'significant contribution' downwind nonattainment areas."
"No amount of tinkering...will transform CAIR, as written, into an acceptable rule"
"we vacate CAIR and its associated FIP [federal implementation plan]"

(7) [added Aug. 23, 2008]
Sierra Club v. Environmental Protection Agency
Court of Appeals for the District of Columbia [3rd] Circuit
No. 04-1243, August 19, 2008
"Clean Air Act emission limits...are scattered throughout rules promulgated by states or EPA"
"1990 Amendments...created a national permit program"
"Title V gives EPA...the duty to identify its 'minimum elements'"
"in 1997...the agency took the position that...permitting authorities could supplement...requirements"
"In 2002, EPA proposed a regulation codifying this view of §70.6(c)(1)"
"an industry group challenged the...rule...Util. Air Regulatory Group v. EPA, No. 02-1290
"the agency settled the litigation by agreeing to...a...rule that would prohibit...supplementing"
"Several environmental groups challenge the 2006 rule...arguing that they violate the Clean Air Act"
"We hold...that Title V of the Act unambiguously precludes EPA’s interpretation in the 2006 rule"
"Accordingly, we vacate the 2006 rule"

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