American Bar Association
 
Air Quality
American Bar Association Energy and Resources Committees

Air Quality


Upcoming Programs




Vapor Intrusion, Remediation, and Site Closure Conference

September 10-11, 2014 : The Air and Waste Management Association is pleased to announce a specialty conference on important technical considerations involving the vapor intrusion (VI) pathway, site remediation and advancing the process of site closure. This specialty conference will bring together internationally-recognized scientists, engineers, regulators and attorneys with experience in getting sites to closure and the critical sustainability and technical issues that need to be considered in doing so.

For more information or to register, go to the website.

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MATS and CSAPR: Implications of the U.S. Supreme Court’s and D.C. Circuit’s Decisions Upholding EPA’s Rules for the Electric Power Sector

Speakers:

  • Moderator: Gale Lea Rubrecht is Of Counsel with Jackson Kelly PLLC in Charleston, West Virginia.
  • Janet Henry is Deputy General Counsel for American Electric Power.
  • Robert "Bob" J. Martineau, Jr. is Commissioner of the Tennessee Department of Environment and Conservation and also currently serves as Vice President for the Environmental Council of the States (ECOS), the national association of state environmental officials.
  • Sonja Rodman is an attorney in U.S. EPA's Office of General Counsel in Washington, D.C.
  • Paul Versace is an attorney in U.S. EPA’s Office of General Counsel in Washington D.C.

Program Materials:

CSAPR and MATS – Next Steps by Janet Henry

Overview of the D.C. Circuit's MATS Decision by Gale Lea Rubrecht

Overview of the U.S. SupremeCourt’s Decision on EPA’sCross State Air Pollution Rule by Gale Lea Rubrecht

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Congratulations to the Air Quality Committee! The Section recognizes the Air Quality Committee for Best Committee (Environmental Law) and Best Committee Newsletter during the 2012-2013 ABA year. Click here for more information on this year's Section Committee Awards.

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About the Committee

The Air Quality Committee provides a valuable forum and practical resources for lawyers interested in air-related issues to: (1) keep up to date on new developments, through extensive communications such as newsletters, satellite conferences and seminars; (2) exchange ideas and best practices with other practitioners around the country; and (3) stay involved with the environmental lawyer community by contributing to various Section publications and participating in Section events.


Hot News



EPA Releases Proposed GHG Emission Standards For Existing Power Plants
On June 2, 2014, U.S. EPA announced the release of its highly anticipated proposed greenhouse gas (GHG) emission standards for existing power plants. The proposed rule will require existing power plants to reduce GHG emissions by an average of 30 percent from 2005 levels by 2030. Emission reduction targets will be set on a state-by-state basis taken into account reductions states have already made. The rule is expected to be completed by June 2015 and will give states up to one year to develop and submit implementation plans to EPA. In addition, states will have the ability to request extensions of up to two additional years to complete their plans. There will be a 120-day public comment period beginning on the date of publication in the Federal Register. There will be four public hearings across the country during the week of July 28, 2014. EPA’s proposed rule and associated Fact Sheets can be accessed here.

EPA Proposes Updates to Emissions Standards for Petroleum Refineries
On May 15, 2014, EPA proposed its residual risk and technology review rule and new source performance standards (NSPS) for petroleum refineries. EPA is proposing additional emission control requirements for storage tanks, flares and coking units at petroleum refineries and to require monitoring of air concentrations at the fence line of refinery facilities. EPA’s proposed rule and fact sheet can be access here.

D.C. Circuit Denies Petition For Review in PM2.5 NAAQS Litigation
On May 9, 2014, the D.C. Circuit denied the petitions for review in the PM2.5 NAAQS Litigation, and upheld EPA’s Final Rule strengthening the annual primary PM2.5 NAAQS from 15 to 12 micrograms per cubic meter. The court also upheld EPA’s decision to eliminate “spatial averaging”, which allowed certain areas to demonstrate compliance with the NAAQS with results from multiple monitors within the same area. Additionally, the court upheld EPA’s “near-road” requirement for 50 new monitors near heavily traveled roads in large metropolitan areas with populations greater than 1 million. Finally, the D.C. Circuit rejected Petitioners’ argument that EPA should issue guidance before requiring compliance with the new PM2.5 NAAQS. The Court’s opinion can be accessed here.

U.S. Supreme Court Reinstates EPA’s Cross-State Air Pollution Rule
On April 29, 2014, the U.S. Supreme Court upheld EPA’s Cross State Air Pollution Rule (CSAPR) in a 6-to-2 decision. The Court held that EPA: (1) has authority under the Clean Air Act (CAA) to consider cost-effectiveness when allocating emission reduction obligations in upwind states necessary to insure downwind states satisfy the National Ambient Air Quality Standards (NAAQS); and (2) is not obligated to provide states with an opportunity to revise their inadequate State Implementation Plans (SIPs) prior to issuing Federal Implementation Plans (FIPs). The Court’s opinion can be accessed here.

D.C. Circuit Upholds MATS
On April 15, 2014, the D.C. Circuit upheld U.S. EPA’s Mercury and Air Toxics Standards (MATS) governing emissions of hazardous air pollutants (HAPs) from existing coal- and oil-fired electric generating units. A divided panel held that Section 112(n) of the Clean Air Act does not require EPA to consider costs, and its failure to do so was permissible, in determining whether such regulations are appropriate. A copy of the opinion, White Stallion Energy Center, LLC v. EPA, No. 12-1100 (D.C. Cir., Apr. 15, 2014), can be accessed here.





Nebraska Challenges EPA's Proposed Carbon Pollution Standards for New Power Plants
On January 15, 2014, Nebraska sued EPA over its proposed Carbon Pollution Standards for New Power Plants. Nebraska alleges that the standards violate a provision in the Energy Policy Act of 2005 that prohibits the use of federally funded projects for the purposes of determining that a pollution control technology (i.e., carbon capture and sequestration), has been "adequately demonstrated" as required under the Clean Air Act. A copy of Nebraska’s complaint can be accessed here.













EPA publishes its proposed Standards of Performance for GHG Emissions from New Electric Utility Generating Units
On January 8, 2014, EPA published its proposed Standards of Performance for Greenhouse Gas Emissions from New Electric Utility Generating Units. EPA will hold a public hearing on January 28, 2014 and comments on the proposal must be filed no later than March 10, 2014. Notably, the current proposed rule includes substantive changes from EPA’s April 2012 proposal. Along with the current proposed rule, EPA issued a second notice affirmatively withdrawing the April 2012 proposal. As a result, the April 2012 publication date is no longer relevant for determining whether a unit will be required to meet the NSPS and instead January 8, 2014 will determine a unit’s status as a new or existing unit. EPA also stated that comments submitted in response to the April 2012 proposal will not be associated with this new proposal and commenters will need to resubmit them to ensure consideration in the development of the final rule. A link to the proposed rule can be accessed here. A link to the withdrawal of the April 2012 rule can be accessed here.









Coalition of States Request Flexibility to Meet EPA’s Forthcoming Utility NSPS For Existing Power Plants
On December 16, 2013, 15 states sent a letter to EPA commenting on approaches for reducing carbon pollution from existing power plants. The states signing the letter are California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Vermont and Washington. These states urge EPA to: (i) establish the performance level of the standard based on a “best system of emission reduction” that reflects the full range of approaches that states have successfully demonstrated can cost-effectively reduce carbon pollution from the electricity system as a whole; (ii) establish the form of the emission guideline in a way that equitably recognizes the different starting points and circumstances of different states, including the pollution reductions achieved by states through climate and clean energy programs; and (iii) allow for a variety of rigorous state compliance options, including options for compliance through participation in regional emission budget trading programs and state portfolio programs. Copies of the December 16, 2013 letter and accompanying press release by the Georgetown Climate Center can be found here.












D.C. Circuit Grants In Part and Denies In Part Environmental Petitioners' Petition for Panel Rehearing in the 2008 Ozone NAAQS Litigation
On December 11, 2013, the D.C. Circuit entered an order concerning the Environmental Petitioners’ Petition for Panel Rehearing on the primary ozone standard in the 2008 Ozone NAAQS litigation. The D.C. Circuit agreed with the Environmental Petitioners that reversal of “margin of safety” decisions is not limited to cases of “egregious procedural errors” and deleted that language from its opinion. While the D.C. Circuit granted in part the Environmental Petitioners’ petition, the Court also denied the petition insofar as it sought a remand of the primary ozone standard for a more stringent standard and adhered to its original language that what constitutes an “adverse” effect on public health is a policy decision, and not a scientific decision. The Court’s opinion can be accessed here.















Environmental Group Lacks Standing to Compel State Regulation of GHG Emissions
On October 17, 2013, the Ninth Circuit Court of Appeals held that two environmental organizations, Washington Environmental Council (WEC) and the Washington State Chapter of the Sierra Club (Sierra Club), lacked Article III standing to assert claims under the citizen-suit provision of the Clean Air Act to compel Washington state agencies to regulate greenhouse gas (GHG) emissions from oil refineries in the state. Article III standing requires plaintiffs to satisfy three elements: (i) the existence of an injury in fact that is concrete, particularized, and actual or imminent; (ii) an injury that is fairly traceable to the challenged conduct; and (iii) an injury that is likely to be redressed by a favorable court decision. The court found that WEC and the Sierra Club established the existence of an injury in fact; however, they did not establish causality (i.e., injury traceable to the challenged conduct). The Ninth Circuit found that, while the groups alleged that their injuries were causally linked to the state agencies’ failure to set and apply reasonably available control technology (RACT) standards, the chain of causality between the Agencies’ alleged misconduct and the members’ injuries was too attenuated. The court’s opinion can be accessed here.











EPA Proposes Carbon Emission Standard for New Power Plants
On September 20, 2013, U.S. EPA released its carbon emissions standards for new power plants. The agency is proposing separate standards for natural gas-fired power plants and coal-fired power plants, which is a different approach than what EPA proposed in April 2012. Specifically, for natural gas-fired power plants, EPA is proposing two standards, depending upon the size of the facility: (1) 1,000 pounds of CO2 per megawatt-hour (lb CO2/MWh-gross) for larger units, and (ii) 1,100 lb CO2/MWh-gross for small units. Natural gas combined cycle units currently undergoing construction can meet these proposed standards without installing any add-on control technology. For coal-fired power plants and integrated gasification combined cycle (IGCC) units, EPA is proposing two limits: (i) 1,100 lb CO2/MWh-gross; or (2) 1,050 lb CO2/MWh-gross over a 7-year period. The full proposal and EPA's fact sheet can be found here.












D.C. Circuit Decision Issues Decision In 2008 Ozone NAAQS Litigation
On July 23, 2013, the U.S. Court of Appeals for the District of Columbia rendered its decision in the 2008 Ozone NAAQS Litigation, Mississippi v. EPA. The D.C. Circuit upheld the 0.075 ppm primary standard, but remanded the secondary standard to the district court for further explanation or reconsideration. Regarding the secondary standard, the Court found that “EPA failed to determine what level of protection was ‘requisite to protect the public welfare,’” and therefore “EPA’s explanation for the secondary standard violates the [federal Clean Air Act].” In the meantime, the 2008 secondary standard remains in place. The Court's opinion can be accessed here.



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To view the Air Quality Committee Hot News archive, click here.












Message from the Chair

Welcome to the Air Quality Committee home page. Our Committee provides a valuable forum and resources for lawyers, law students, and others interested in air quality issues. We seek to encourage membership participation and information exchange among air quality practitioners and other Environment, Energy, and Resources Section committees. As significant federal Clean Air Act and related regulatory developments continue to occur at breakneck speed, we keep our members current on these developments, through timely and informative communications via our website, social media, Hot News email alerts, newsletters, conference programs, Committee Conference Calls, webinars, the Section’s Year-in-Review, and other publications. The Committee’s vice chairs for 2013-2014 are identified in the “Leadership” box located on the right-hand side of this webpage. I encourage you to contact me or any of our Committee vice chairs to ask questions, share information, suggest ideas for Committee activities or to become involved in our Committee activities and leadership.

Website and List Serve: Through our Hot News section on this webpage, the Committee distributes timely information on recent air quality developments and Section and Committee activities of interest. Our Committee website also includes links to briefs in air quality cases pending in the U.S. Supreme Court (e.g., EME Homer City Generation v EPA) and air quality blog articles from Committee members’ e-newsletters. If you are aware of a new air quality case, law, or regulatory or technical development, feel free share it with me or any of the Committee vice chairs with communication responsibilities (Michael Balster, Cheri Budzynski, Randy Dann, or Tom Echikson) so that we might communicate these developments with the full Committee membership.

Newsletter: Our Committee newsletter contributors report major happenings within each U.S. EPA region such as state and federal rulemakings and important judicial and administrative decisions addressing air quality regulation and policy. In addition to the regional reports, we are seeking guest articles from Committee members and non-members. Please contact Randy Dann or Tom Echikson, our Committee Newsletter vice chairs, with any article submissions or ideas for future newsletter topics.

Social Media: Our Committee vice chair for Social Media, Cheri Budzynski, regularly posts air quality developments and Section and Committee activities on LinkedIn and Twitter. We encourage you to join our Air Quality Subgroup on LinkedIn, and we invite you to engage in discussions and exchange information on air quality issues with Committee members using LinkedIn and Twitter.

Conference Programming: For the 22nd Fall Conference from October 8-11, 2014 at the Trump National Doral, the Section is beginning the conference programming planning process with “hot topics”. Program vice chairs, Committee chairs, and others were invited to join Peter Wright, Chair of the Section’s Education Service Group, for three conference planning calls to brainstorm and propose panel topics, speakers, and formats. John Jacus, Program Planning Chair for the Fall Conference, has facilitated these conference calls. The Program Planning Committee will select panel topics, speakers, and formats that have broad appeal. For more focused topic areas, the Committee hosts webinars and Conference Calls as an alternative to the Section’s conferences. We welcome your ideas for programs. If you have suggestions for topics, speakers, or formats, contact Committee vice chairs for Programming, Marty Booher, Shannon Broome, and Jocelyn Thompson, or me.

Webinars and Committee Conference Calls: In 2013, the Committee sponsored the following webinars or Committee Conference Calls: (1) “U.S. EPA`s Boiler MACT and CISWI Rules: What You and Your Clients Need to Know for Compliance Now that the Reconsideration Process is Complete,” February 13, 2013; (2) “The Expanding Intersection Between FERC and EPA,” June 18, 2013; (3) “EPA’s Carbon Pollution Standards for Power Plants,” October 30, 2013; and (4) “Coal-Fired Power Rules on Trial: Debrief of Cross State Rule and Mercury Air Toxics Oral Arguments,” December 11, 2013. If you have any recommendations for a webinar, or Committee Conference Call, please contact Committee vice chairs for Programming, Marty Booher, Shannon Broome, Jocelyn Thompson, or me.

Year-in-Review: The Section’s Year-in-Review is an outstanding resource of important air quality case law and regulatory developments over the year. If you are interested in being a contributing author, please contact Committee vice chair Jonathan Martel or me.

SEER Publications: Interested in writing an article on an air quality topic for Trends, Natural Resources & Environment, or a Section book or other publication? If so, contact Linda Tsang, our Committee vice chair for Publications.

Membership: In 2013, we organized Committee dinners for both the Spring and Fall Meetings. We will organize a Committee dinner during the Section’s Fall Meeting in Miami, Florida. This is a great opportunity to meet the members of the Committee. If you are interested in attending the dinner or joining the Committee, contact our Committee vice chair for Membership, Phil Bower, or me.

Public Service: Posted on our website are suggestions for simple ways to help reduce ground-level ozone and links to state-specific, U.S. EPA, and public interest groups and other websites for additional information. We are looking for ways to expand the public service section of our website and for suggestions for other Committee public service projects. Our Committee vice chair for Public Service, Heidi Knight, and I would welcome your ideas for Committee public service projects.

Spring Meeting: The Spring Meeting is scheduled for March 20-22, 2014, in Salt Lake City, Utah. The schedule of events has changed slightly. There will be four all-conference plenaries and nine break-out sessions. New this year will be a free workshop titled “Communication and Mediation for the Environment and Natural Resources Lawyer,” on Thursday morning co-sponsored with the University of Utah, S.J. Quinney College of Law Natural Resources Law Forum, that will examine successful communication tools in social media, dispute resolution, and general practice and explore how environmental, energy and natural resources lawyers may connect scientific information for added value. The half-day workshop will take place at the University of Utah campus, which is located a short mass-transit ride away from the Grand America Hotel. Refreshments and a boxed lunch will be provided.

On Thursday afternoon, there will be two plenary sessions followed by the Technical Roundtables. Thursday’s first plenary session, titled “EPA Priorities Leading into the 2014 Mid-Term Elections and the home stretch for the Obama EPA,” will feature several of EPA’s leading officials discussing some of the agency’s top priorities for 2014 and action items to accomplish by 2016. Roger R. Martella, Jr., of Sidley Austin LLP, in Washington, D.C. will moderate. Thursday’s second plenary session, titled “Energy Development on State Lands,” will explore energy developments taking place in the states and how the laws, regulations, and policies of state land management are affecting such development. Speakers include: Ryan M. Lance of Crowell & Moring LLP, in Cheyenne, Wyoming; David Neslin of Davis Graham & Stubbs LLP, in Denver, Colorado; and Harry Weiss of Ballard Spahr LLP, in Philadelphia, Pennsylvania. Following the Technical Roundtables, there will be a Welcome Reception and the Section Dinner, which is included in the registration fee. After the Section Dinner, law students and young lawyers will have a networking event.

Programming on Friday morning will start with breakout sessions and end with a plenary session. The Friday break-out sessions include one titled “Hot Topics in Air: The Coming Climate Regulations”. Representatives from government policymaking, industry, and the NGO community will explain the expected greenhouse gas standards for new and existing power plants and state implementation of these new standards. The air hot topics break-out session will address actions the administration is or is likely to take over the next three years to address climate change. Speakers include: Kenneth L. Kimmell, Commissioner of the Massachusetts Department of Environmental Protection and Secretary of RGGI, Inc., in Boston, Massachusetts, and Frank Prager, Vice President, Environmental and Public Policy, Xcel Energy Services, Inc., in Denver, Colorado. Thomas A. Lorenzen of Dorsey & Whitney LLP, Washington, D.C., will moderate. The conference will include additional break-out sessions that may be of interest to air quality practitioners. Speakers for Friday’s plenary session, titled “Supreme Court Review: Narrowing Decisions on Water, Air, and Jurisdiction,” include Peter D. Keisler who argued on behalf of industry and labor in the Cross-State Air Pollution Rule litigation in the U.S. Supreme Court.

The Young Lawyer and Law Student Speed Networking Event will take place on Friday followed by a reception. There will be hot topics sessions on enforcement and ethics on Saturday morning, and the Section’s tree planting project will take place at the end of the conference on Saturday afternoon.

Feel free to send comments or ideas for the Committee to me. You may access my contact information at my ABA profile. I hope to meet many of you during these upcoming events.

All the best,

Gale Lea Rubrecht
Air Quality Committee Chair, 2013-2014

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Modified by Romeo Talento on July 22, 2014

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