Ohio v. Sierra Club: The Integrity of the Clean Air Act

EPAYesterday, the Supreme Court of the United States announced it will not grant Certiorari in Ohio v. Sierra Club, et al. In this case, the Sixth Circuit found an area must adopt required pollution-control measures before the EPA can designate it as having satisfied the law’s health-based pollution standards.

In 1997, the EPA created the National Ambient Air Quality Standards of fine particulate matter in the air.  When the EPA created these standards, regions were designated as having met, or not met the air quality standards.  In order to meet the standards, states were required to adopt “reasonable measures and technologies” to reduce the pollution in the problematic areas.  In 2011, the EPA deemed Ohio to have met the appropriate standards because the air quality had improved. Ohio, however, had never created a pollution regulatory plan as the Clean Air Act required. In response, the Sierra Club filed suit alleging the EPA acted illegally by designated the areas as having met air quality standards.

Creating a pollution regulatory plan is crucial, according to Sanjay Narayan, the managing attorney for the Sierra Club on the case.  Before 1990, the Clean Air Act had no requirement that states produce an implementation plan.  According to Narayan, the expectation was “we [the EPA] don’t care how you get there, we aren’t going to tell you how to get there, we’re just going to check in at the deadline and expect you to have made it. And what happened was that the vast majority of the states did not meet the deadline.”

Narayan describes the implementation plan as “a show your math” requirement. This has been very useful in helping states create lasting change in their air quality–by creating a regulatory framework that shows how they can reduce air pollution, the states are more likely to meet their deadline.  Narayan points out “It’s also useful for other areas to know what worked and what successful areas did.  Here’s what turned out to be cost effective, that kind of record is tremendously useful as we move forward on what was meant to be a nation-wide campaign for healthy air for the public.”

In  Ohio v. Sierra Club, there are a few details to consider.  Pollution decreased, and that’s the goal.  However, it might not be that simple.  In the years preceding Ohio’s drop in air pollution, the economy crashed.  Narayan draws comparisons to the Beijing Olympics, saying, “When people aren’t running their [industrial] plants for economic reasons, the air cleans up a little bit.  But it turns around quickly once you turn the plants back on.”  However, Ohio did meet the standard, and according to Narayan, to comply with the Clean Air Act they’d simply need to go back and show their work.  He says, “They did meet the standard, and they say they have all the controls they need in place.  There is a procedural step that Ohio hasn’t taken, and it shouldn’t be hard for Ohio to take it.”

The Sixth Circuit decision that currently stands requires Ohio to take those regulatory steps. In the current case, the Sixth Circuit agreed that the entire portion of the Clean Air Act must be followed, and that it wasn’t enough for Ohio to have simply met the standards.  Ohio has appealed to the Supreme Court.

Narayan says, “It’s about the integrity of the clean air act.”  These requirements are crucial in ensuring the air gets cleaned up in a timely manner.  Narayan says, Decades of experience has shown us that without these requirements, states miss deadlines, air pollution lasts for much longer than it should and the public really suffers.  The pollution sends kids to the hospital with asthma, it creates respiratory disease in the elderly-delay is a disaster for public health.”

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Which Way is the Wind Blowing? U.S. Supreme Court Upholds EPA’s Cross-State Air Pollution Rule

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On April 29, 2014, the U.S. Supreme Court issued a decision upholding EPA’s Cross-State Air Pollution Rule (also known as the Transport Rule). The Transport Rule restricts air emissions from upwind states that in EPA’s judgment contribute significantly to nonattainment of the National Ambient Air Quality Standards(NAAQS) in downwind states. According to EPA’s regulatory impact analysis, the Rule is expected to have significant cost implications for electric generating utilities, and much of the costs could occur in Midwestern and Southern states that were identified in the Transport Rule as contributing to nonattainment of the NAAQS for states along the East Coast.

The Transport Rule was promulgated pursuant to what is often called the “Good Neighbor” provision of the Clean Air Act. In the Rule, EPA established a two-step approach for restricting emissions in upwind states. First, EPA used air modeling to determine which upwind states contributed more than one percent to the NAAQS for 8-hour ozone and PM2.5 in downwind states. Second, EPA determined the level of emission reductions that could be achieved in downwind states based on cost estimates for reducing emissions. For example, EPA concluded that significant emission reductions could be obtained for a cost of $500 per ton of NOx reduced, but that at greater than $500 per ton the emission reductions were minimal. The Agency then translated those cost estimates into the amount of emissions that upwind states would be required to eliminate. Lastly, EPA developed a Federal Implementation Plan (FIP) detailing how states were to comply with the emission budgets assigned under the Transport Rule.

As we previously reported in August 2012, the Transport Rule had been struck down by the U.S. Court of Appeals for the District of Columbia on Aug. 21, 2012. The Court of Appeals struck down the rule primarily for two reasons. First, the court found the cost estimates that EPA used as a basis to justify emission reductions would in some cases result in requirements for upwind states to reduce their emissions more than necessary to eliminate “significant” contributions to nonattainment in downwind states. The court held that EPA could only require reductions proportionate to a specific upwind state’s contribution to a downwind state’s nonattainment status. Second, the court held that states should have been given an opportunity to develop their own implementation plans before EPA required states to follow the FIP in the Transport Rule.

In reversing the Court of Appeals, the U.S. Supreme Court concluded that the Clean Air Act does not require EPA to mandate only proportionate reductions in emissions from upwind states. The court argued that the “proportionality approach could scarcely be satisfied in practice” because there are multiple upwind states that each affect multiple downwind states. The Court concluded that the proportionality approach would mean that “each upwind State will be required to reduce emissions by the amount necessary to eliminate that State’s largest downwind contribution,” but that would result in cumulative emission reductions and “costly overregulation.” The court also concluded that it was appropriate for EPA to use cost as a means of allocating emissions, instead of the proportionality approach favored by the D.C. Circuit.

Regarding the FIP approach, the court held that after EPA issues a NAAQS, each state is required to propose a State Implementation Plan (SIP), including requirements to satisfy the Good Neighbor provision of the Clean Air Act. Therefore, the Court held it was appropriate for EPA to establish a FIP because the statutory deadline to propose SIPs that complied with the Good Neighbor provision had passed. The court rejected the D.C. Circuit’s conclusion that it was premature to establish a FIP before EPA had made a determination regarding each upwind state’s contribution to downwind states’ nonattainment.

Supreme Court Justice Antonin Scalia, joined by Justice Clarence Thomas, authored a dissent in the case agreeing with the D.C. Circuit that costs are not contemplated as a basis for reducing emissions under the Good Neighbor provision. Further, the dissent addressed the majority opinion’s assertion that the proportionality approach would result in “costly overregulation.” The dissent stated, “over-control is no more likely to occur when the required reductions are apportioned among upwind States on the basis of amounts of pollutants contributed than when they are apportioned on the basis of cost.” The dissent went on to note, “the solution to over-control under a proportional-reduction system is not difficult to discern. In calculating good-neighbor responsibilities, EPA . . . would set upwind States’ obligations at levels that, after taking into account those reductions, suffice to produce attainment in all downwind States. Doubtless, there are multiple ways for the Agency to accomplish that task in accordance with the statute’s amounts-based, proportional focus.”

At this juncture, it is unclear whether EPA will need to promulgate additional rules to implement the Transport Rule as many of the Transport Rules’ deadlines have already expired. Additionally, it is unclear whether other legal challenges to the Transport Rule, including challenges to whether the Rule satisfies regional haze emission requirements, will delay final implementation of the Rule. Those challenges have been stayed since the D.C. Circuit Court of Appeals vacated the rule in 2012 but appear to be able to proceed now that the vacatur has been overturned by the U.S. Supreme Court. There are also questions as to whether the Transport Rule, which was designed to help meet the 1997 ozone NAAQs of 80 ppb, will need to be reworked by EPA to meet the stricter 2008 ozone NAAQs of 75 ppb. It is also possible that estimates of emission cuts expected from the original the Transport Rule will change given the move by several power plants to convert from coal to natural gas in recent years.

A copy of the U.S. Supreme Court’s decision is available here.

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U.S. Announces Innovative Clean Air Agreement For Industrial Flares With Marathon Petroleum Company

Recently The National Law Review published an article by the U.S. Environmental Protection Agency regarding a New Clean Air Agreement:

The U.S. Environmental Protection Agency (EPA) and the Department of Justice today announced an innovative environmental agreement with Ohio-based Marathon Petroleum Company that already has significantly reduced air pollution from all six of the company’s petroleum refineries. In a first for the refining industry, Marathon has agreed to state-of-the-art controls on combustion devices known as flares and to a cap on the volume of waste gas it will send to its flares. When fully implemented, the agreement is expected to reduce harmful air pollution by approximately 5,400 tons per year and result in future cost savings for the company.

“Today’s agreement will result in cleaner air for communities across the South and Midwest,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “By working with EPA, Marathon helped advance new approaches that reduce air pollution and improve efficiency at its refineries and provide the U.S. with new knowledge to bring similar improvements in air quality to other communities across the nation.”

“This agreement is a great victory for the environment and will result in cleaner and healthier air for the benefit of communities across the country in Illinois, Kentucky, Louisiana, Michigan, Ohio and Texas,” said Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division of the Department of Justice. “By spurring corporate ingenuity, this settlement will dramatically reduce emissions from all 22 flares at Marathon’s six refineries.”

The settlement is part of EPA’s national effort to reduce air pollution from refinery, petrochemical and chemical flares. A flare is a mechanical device, ordinarily elevated high off the ground, used to combust waste gases. The more waste gas a company sends to a flare, the more pollution occurs. The less efficient a flare is in burning waste gas, the more pollution occurs. EPA wants companies to flare less, and when they do flare, to fully combust the harmful chemicals found in the waste gas.

A consent decree filed today in the U.S. District Court in Detroit resolves Marathon’s alleged violations of the Clean Air Act. As part of the effort to reach this agreement, Marathon, under the direction and oversight of EPA, spent more than $2.4 million to develop and conduct pioneering combustion efficiency testing of flares and to advance the understanding of the relationship between flare operating parameters and flare combustion efficiency.

In addition, beginning in 2009, Marathon installed equipment, such as flow monitors and gas chromatographs, to improve the combustion efficiency of its flares. To date, Marathon has spent approximately $45 million on this equipment and projects, and plans to spend an additional $6.5 million. Marathon also will spend an as yet undetermined sum to comply with the flaring caps required in the consent decree.

At the same time, Marathon indicates that the equipment it already has installed is saving it approximately $5 million per year through reduced steam usage and product recovery. Marathon also projects additional savings through the operation of the equipment to be installed in the future.

From 2008 to the end of 2011, the controls Marathon installed eliminated approximately 4720 tons per year of volatile organic compounds (VOCs) and 110 tons per year of hazardous air pollutants (HAPs) from the air. An additional 530 tons per year of VOCs and 30 tons per year of HAPs are projected to be eliminated in the future.

Under the agreement, Marathon will also implement a project at its Detroit refinery to remove another 15 tons per year of VOCs and another one ton per year of benzene from the air. At an estimated cost of $2.2 million, Marathon will install controls on numerous sludge handling tanks and equipment.

Marathon’s six refineries are located in: Robinson, Ill.; Catlettsburg, Ky.; Garyville, La.; Detroit; Canton, Ohio; and Texas City, Texas. Together, the refineries have a capacity of more than 1.15 million barrels per day.

Marathon, headquartered in Findlay, Ohio, will pay a civil penalty of $460,000 to the United States.

The consent decree is subject to a 30-day public comment period and final court approval.

More about the settlement: http://www.epa.gov/compliance/resources/cases/civil/caa/marathonrefining.html

More about EPA’s civil enforcement of the Clean Air Act: http://www.epa.gov/compliance/civil/caa/index.html

More about EPA’s refinery initiative: http://www.epa.gov/compliance/resources/cases/civil/caa/oil/

© Copyright 2012 United States Environmental Protection Agency