On September 12, 2008, Ohio EPA issued proposed rules that would require a new permit, called a "state water quality permit", for all dredge or fill impacts to non-federally regulated streams. Ohio may be the first state in the country to try and expand state stream permit requirements in reaction to recent U.S. Supreme
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:
- Substantial health benefits will be lost without action to replace
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.
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
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. …
The USA Today did a story on the huge debate taking place over the limits of federal jurisdiction over waterways. The debate ensued in the aftermath of two major Supreme Court cases dealing with federal jurisdiction over wetlands.
Early on the focus after Rapanos and SWANCC was which wetlands would receive federal protection. Now, after a series…