The U.S. Senate Environment and Public Works Committee held a timely hearing on the effect of the Court of Appeals decision vacating CAIR. There was testimony from US EPA, State, Utilities and one Environmental Group.
The Senators and all who testified agreed on certain items:
In my last post I discussed corporations that are using a vast array of accounting methods to calculate carbon footprints. An article in the Seattle-Post-Intellegencer discussed variations found in outputs from household on-line carbon footprint calculators.
While US EPA’s forthcoming rule will address measuring emissions of greenhouse gases from large industrial sources, it certainly appears there are
Have you measured your company’s carbon footprint yet? Don’t worry if you haven’t, in the wild west that is climate change sometimes it pays to wait and see how things shake out. For instance, who would have thought just picking an accounting method for measuring greenhouse gas (GHG) emissions would be so complicated.
There is
In a prior post discussing the impact of the Supreme Court’s rulings limiting federal jurisdiction over waterways, I discussed how state’s may feel increasing pressure to fill the gaps in federal authority. A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak.
In my prior posts on CAIR, I analyzed the real world impacts of the Court’s decision to vacate the program. In my final post on CAIR, I highlight some of the legal implications from the Court’s decision on business and policy makers. This is not meant to be a legal brief for lawyers, but rather
In my previous post on the CAIR decision, I discussed the environmental and practical ramifications of the Court’s decision vacating the program. While speaking at a large permitting seminar for manufacturer’s, I had a chance to discuss the conclusions of my prior post with some State officials. While I was correct that the CAIR decision complicates
With Michigan and Pennsylvania’s passage of the Compact, all of the Great Lake States have now endorsed it. The next step is to go to Congress for ratification. While the press has almost exclusively concentrated on the diversion aspects of the Great Lakes Compact, there are other provisions that could have important ramifications for businesses. Ohio has yet to pass enabling legislation that will grant authority to the Ohio Department of Natural Resource to implement other important aspects of the Compact, most notably regulation of water withdraws.
The driving force behind the Compact was to ban diversions to other States and Countries. But the Compact also requires each of the eight states to establish a regulatory program for new or increased withdraws from the Great Lakes basin. Ohio’s enabling legislation will decide critical issues such as- how much water must be withdrawn before a permit will be required? The Compact sets a default number of 100,000 gallons per day (gpd). Other states have established higher thresholds, such as 1,000,000 gpd.
Another critical question – what type of review is required if a business triggers the need for a withdraw permit? The Compact contains very broad language that requires a review of impacts to the Great Lake basin from which the withdraw takes place. However, the Compact grants the states a tremendous amount of discretion to establish the level of review associated with new withdraws. For example, Ohio could prohibit issuance of a withdraw permit if the proposed project would result in decreased flow in a tributary of Lake Erie. Ohio could also require a detailed review of the impacts to the ecosystem if a withdraw is allowed.
While focus has rightfully been on protecting this tremendous freshwater resource from being diverted elsewhere, there are important policy questions that still remain unanswered. How Ohio and the other Great Lake States regulate withdraws within their states will arguably have a more direct and immediate impact on its constituents. Continue Reading Important Issues Unaddressed After Passage of Great Lakes Compact
The recent decision issued by the D.C. Circuit Court of Appeal vacating the CAIR rule has far reaching implications. It probably justifies at least one more post. Understandably, reaction has been related to the fact that this major clean air initiative was dismantled with a stroke of a pen. A fact highlighted by EPA’s announcement in 2005 when the CAIR rule was implemented.
“CAIR will result in the largest pollution reductions and health benefits of any air rule in more than a decade. The action we are taking will require all 28 states to be good neighbors, helping states downwind by controlling airborne emissions at their source.”
–Steve Johnson, Acting EPA Adminstrator
3/10/2005
The Court included editorial comments trying to suggest the impact would be minimal. For instance, the Court points to two power plant pollution control programs (the NOx SIP call and Acid Rain Program) that will still be effective in reducing emissions even after CAIR is gone. The Court also suggests that State’s could simply sue one another if more reductions are needed (using its Clean Air Act Section 126 authority). Litigation is hardly an effective pollution control strategy.
Bottom line, there is simply no way to minimize the impact of its decision or the ramifications for States and US EPA.
The map to the left is a good representation of the breadth of the CAIR program. Each dot represents advanced pollution controls on a power plant. (Click on the map to enlarge the view) This map shows US EPA’s projections as to controls on power plants by 2010 after CAIR and CAMR (power plant mercury control program), both of which have been vacated by the Court. While some of the dots may remain due to the NOx SIP Call and Acid Rain Program, many will disappear or be on hold.
How many dots disappear? US EPA projected that CAIR would result in 116 more units having advanced air pollution controls in 2010. By 2020, the number was 287 more units.
While the decision certainly impacts efforts at cleaner air, it also makes a mess of state air pollution control plans (called State Implementation Plans- SIPs) that have been submitted for approval by US EPA. Most of the SIPs submitted rely on CAIR as a primary control method to achieve federal air quality standards for ozone and soot. The ruling brings tremendous uncertainty as to how these state plans will be reviewed.
To support CAIR, US EPA provided modeling to show air quality improvement that would result from reductions brought about by the program. State’s relied upon this modeling as part of their air pollution control plans to achieve federal air quality standards.
What was the magnitude of air quality improvement that US EPA projected? The Agency showed that in 2005, 104 areas didn’t meet ozone standards and 43 areas didn’t meet pm 2.5 (soot) standards. By 2010, EPA projected the number of areas not meeting ozone and soot standards would be reduced to 14 and 20 respectively due in part to CAIR.
Now that the State’s cannot rely on CAIR as a cornerstone of their air pollution control strategies, those reduction must come from somewhere. Without these massive reductions State’s face missing deadlines to meet federal air quality standards. Missing the federal deadline can bring sanctions and more rigorous air pollution control requirements on businesses within the state.
US EPA has even adopted a tougher ozone standard which is currently being implemented. The State’s face enormous challenges in meeting this new standard if there is no federal air pollution control program applicable to power plants. From reading the decision, it may be very difficult to craft a legal program using administrative authority. Congress may have to amend the Clean Air Act to give US EPA the authority, but since 1990 Congress has shown its reluctance to re-open the Clean Air Act. Continue Reading CAIR Decision Will Have Many Aftershocks
In the most recent issue of Builder’s Exchange, a construction attorney in my office (Jim Dixon) and I wrote an article discussing asbestos regulations as they pertain to contractors working at a job site.
The article was intended to raise awareness in the construction industry that contractors can be liable for asbestos violations even if they
For the first time a court has revoked a permit due to concerns over C02 emissions and climate change. While there have been previous instances where states have denied permits due to concerns with C02 emissions, this is the first time a court has revoked a previously issued permit. Notably, the Court did not base its decision on state law, rather it ruled the Clean Air Act (CAA) requires analysis and control of C02 emissions.
Other courts are currently hearing similar challenges. If this decision is a trend it will have major implications for any new facilities seeking an air permit. In a future blog post I will discuss the implications of using the Clean Air Act, specifically the New Source Review provisions, to regulate CO2. Much speculation has been made as to whether CO2 will be regulated even without action by Congress on comprehensive climate change legislation.
The CO2 decision was issued on June 20, 2008 in Georgia’s Fulton County Superior Court. The Georgia Environmental Protection Division had approved a permit for the construction of a proposed 1200-megawatt coal-fired power plant. Environmental groups, including the Sierra Club, challenged the permit saying the plant’s emission of 8-9 million tons of CO2 had to be considered. Siding with the Sierra Club, the Court overturned the State’s issuance and sent the permit back to perform the analysis it said was required under the CAA.
Note: According to Sourcewatch, between 2007 and 2008, plans for 69 coal plants have been canceled.Continue Reading First Court Revokes Air Permit Over CO2 and Clean Air Act