Recently we’ve seen several developments in the never ending fight for cleaner air. Along with newly proposed regulations limiting carbon emissions from new coal-fired power plants, and pending carbon emission limits for existing coal-fired power plants, federal regulation further limiting other harmful air pollutants are finding their way through various channels. The Cross State Air Pollution Rule (CSAPR) was intended to help downwind states comply with air regulations and address pollution coming from upwind states. CSAPR primarily addresses emission of sulfur dioxide (SO2) and nitrogen oxides (NOx).
SO2 and NOx react in the atmosphere and form fine particle (PM2.5) pollution. Similarly, NOx emissions also react in the atmosphere to create ground-level ozone pollution. These pollutants often travel great distances, affecting air quality and public health locally and regionally. The transport of air pollution across state lines makes regulation of these pollutants increasingly difficult. Below, we explore two efforts aimed at helping to address this complicated pollution conundrum.
At the end of 2013, Governors from eight Northeastern states petitioned the Environmental Protection Agency to add nine Southern and Midwestern states to the Ozone Transport Region (OTR). If these nine states (Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia) are added to the OTR they would be required to take steps to curb interstate transport of air pollution that contributes to non-attainment with the EPA’s national ambient air quality standards in the downwind states. The Governors filing the petition represent Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont. Delaware Gov. Jack Markell (D) stated that on some elevated ozone days as much as 90% of the pollution comes from out of state.
The petitioners claim they have approached these upwind states with voluntary measures to reduce interstate transport of pollution emissions without success. If approved, the petition filed under Section 176(A) of the Clean Air Act would require these nine states to submit state plans within nine months to administer new source review permitting and reasonably available control technology (RACT) requirements for emissions of nitrogen oxides and volatile organic compounds, which contribute to ozone formation. The EPA has 18 months to respond to the petition.
Also in December 2013, the issue of how to regulate cross-state air pollution was brought before the Supreme Court. In June of last year, the Supreme Court agreed to review a previous decision by the Court of Appeals that struck down the Cross State Air Pollution Rule due to an overreach in authority by the EPA. Although the Supreme Court has not delivered its opinion, a SCOTUS blog gives the impression that the Supreme Court appreciated the arguments in favor or reinstating CSPAR made by EPA during the hearing.
Two attorneys for those challenging CSAPR were reminded repeatedly by the Justices that the Clean Air Act did not lay down hard-and-fast directives to the EPA on how to devise pollution control strategies, so the agency was left to come up with those using its own expertise. During the hearing, challengers argued that the EPA effectively forced states to guess at what their obligations would be to be “good neighbors” toward other states under CSAPR. In response to this argument, the Chief Justice conceded that states faced a difficult task, but commented that that is what the Clean Air Act seemed to require. In fact, Roberts said, if the EPA had “taken a different view,” it might have violated the Act.
The Supreme Court has not indicated when it will release an opinion in this case, but if it rules in favor of EPA, we may finally see binding, effective federal interstate air pollution regulation. If not, EPA will have to address the concerns of those 8 Northeastern states without the benefit of CSAPR. Either way, it is likely that we will see some resolution around interstate air pollution regulation in 2014 – and that’s something to be excited about!