Speaker Presentation Materials:
State Perspectives on EPA'S Proposed Ozone Standard
Presented on May 20, 2015
Top state agency leaders will discuss the challenges to implementing EPA's proposed rule to lower the National Ambient Air Quality Standard for Ozone. In its December 17, 2014 proposed rule, EPA seeks to revise the primary and secondary standards for the National Ambient Air Quality Standards for Ozone from 75 ppb to a level in the range of 65 to 70 ppb. Hear from various state agencies what they have to say about the proposal, including the impact of the range of levels proposed, challenges in obtaining further emission reductions, issues associated with background levels of ozone that exceed the proposed NAAQS, nonattainment designations, effect on permitting, and what the states would like to see based on competing interests.
Robert "Bob" Martineau, Commissioner, Tennessee Department of Environment & Conservation
Bob Hodanbosi, Chief of the Division of Air Pollution Control at Ohio EPA
Rob Sliwinski, Director, Bureau of Air Quality Planning for the New York State Department of Environmental Conservation
Colleen Delaney, Environmental Scientist, Division of Air Quality, Utah Department of Environmental Quality
Elizabeth Hurst, Law Offices of Elizabeth A. Hurst, PLLC
50 State Survey –A Complimentary Supplement to Chapter 11: The State Response to Climate Change, GLOBAL CLIMATE CHANGE AND U.S. LAW, 2ND (Michael B. Gerrard and Jody Freeman, eds)
This comprehensive 602 page survey has been prepared by Kelly Nishikawa, Benjamin Lowenthal and other students at Pace Law School’s Global Center for Environmental Legal Studies, under the oversight of the Associate Director of Environmental Law Programs, Laura Jensen. This very valuable reference document accompanies Global Climate Change and U.S. Law, Second Edition (Michael B. Gerrard and Jody Freeman, eds, 2014), available online at the ABA webstore. It compiles state legislation, rules and executive orders that specifically address climate change as of the end of April 2014. It also includes a wide variety of state activities that may have an impact on greenhouse gases including legislation related to energy efficiency and renewable energy. The focus of this material is to provide readers with an understanding of the range of state activity that may contribute to greenhouse gas reduction and climate change. Some types of energy efficiency, alternative fuels and renewable energy legislation (such as tax credits for hybrid vehicles) are very similar from state to state; some laws have a short duration and therefore may not be codified (such as temporary tax credits); energy legislation is being enacted at an increasing pace. As a result, not all energy efficiency, alternative fuels and renewable energy legislation and other activity in every state are included in this compilation.
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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.
Welcome to the ABA Section on Environment, Energy and Resources (SEER) Air Quality Committee website! I am honored to follow in the footsteps of some amazing past chairs of this Committee and believe that we have assembled an outstanding team of vice-chairs to help implement our Committee’s mission.
As anyone who practices in the area of air quality knows, significant federal Clean Air Act and related regulatory developments continue to occur at breakneck speed, and it can be challenging to stay abreast of the latest developments at the state and federal level throughout the United States. The Air Quality Committee is here to help. We act as a forum for information exchange among air quality practitioners and other SEER committees. We strive to keep our members current on the latest developments, through timely and informative communications via our website and listserv, social media, Hot News email alerts, newsletters, conference programs, Committee conference calls, webinars, SEER’s Year-in-Review, and other publications.
We encourage our members to participate in this exchange by submitting articles for the newsletter, suggesting topics for conferences or webinars, sending us key agency and court decisions, policy documents, or briefs on air quality issues, and posting and commenting on our social media pages. If you write an air quality-related article or blog post, we can link to it on our website upon request. All of the 2014-2015 Committee vice-chairs are listed under the Committee Roster link on the right side of this website. Feel free to reach out to me or the appropriate vice-chair if you have any suggestions, questions, or information to share.
Lastly, the 22nd Fall Conference is coming up from October 8-11, 2014, at the Trump National Doral in Miami, and I encourage you to attend. There will be several air quality law-related seminars, as well as opportunities to meet and network with fellow environmental attorneys and Committee members. We look forward to seeing you there.
Air Quality Committee Chair, 2014-2015
EPA Finalizes Ambitious Clean Power Plan (August 2015)
D.C. Circuit Upholds EPA Gas Emissions Rule
On July 14, 2015, the U.S. Court of Appeals for the D.C. Circuit, denied a petition from biofuel producers challenging U.S. EPA’s regulation regarding test fuels, finding that it is reasonable for the agency to require that test fuels be “commercially available” before they can be approved. A copy of the opinion can be accessed here.
D.C. Circuit Preserves Transport Rule
On July 28, 2015, the U.S. Court of Appeals for the D.C. Circuit largely upheld EPA’s plan to control cross-state air pollution under its Cross-State Air Pollution Rule (the Transport Rule), but ordered the agency to reconsider its 2014 emissions budgets for “upwind” states. While the D.C. Circuit remanded the Transport Rule to EPA to reconsider such emissions budgets, it rejected all of petitioners’ other challenges to the Transport Rule, including all facial challenges to the rule. A copy of the opinion can be accessed here.
D.C. Circuit Denies Petitions Challenging EPA’s Proposed Clean Power Plan
On June 9, 2015, the U.S. Court of Appeals for the D.C. Circuit denied both petitions for review and the petition for a writ of prohibition challenging EPA’s proposed Clean Power Plan, because the “complained-of agency action is not final.” Judge Henderson filed a separate opinion concurring in the judgment, but she would find that there is jurisdiction under the All Writs Act, but still would deny relief to the petitioners.
The decisions can be accessed here and here.
EPA Publishes Rule For Implementation of the 2008 Ozone NAAQS SIP Requirements
On March 6, 2015, EPA published its final State Implementation Plan (SIP) requirements rule implementing the 2008 ozone NAAQS and addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology (RACT), reasonably available control measures (RACM), major new source review (NSR), emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also addresses the revocation of the 1997 ozone NAAQS and anti-backsliding requirements that apply when the 1997 ozone NAAQS are revoked.
A link to the rule can be accessed here: http://www.gpo.gov/fdsys/pkg/FR-2015-03-06/pdf/2015-04012.pdf. A link to the EPA fact sheet can be accessed here: http://www.epa.gov/airquality/ozonepollution/pdfs/20150213fs.pdf.
EPA Announces Proposal To Update Ozone NAAQS
On November 25, 2014, the U.S. EPA announced its proposal to update National Ambient Air Quality Standards (NAAQS) for ground-level ozone. The EPA is proposing to revise both the primary and the secondary standards to a level within the range of 65 ppb to 70 ppb. (The current primary and secondary ozone standards are 75 ppb.) EPA will also accept public comment on retaining the current 75 ppb ozone standard or lowering the standard to 60 ppb. EPA will take comment on the proposal for 90 days after it is published in the Federal Register and will hold three public hearings. It plans to adopt a final rule by October 1, 2015. EPA's proposal, fact sheets, information on estimated benefits and costs, maps and tables, and other pertinent information may be found here.
Fifth Circuit Holds Clean Air Act NOVs Are Not Final Agency Action
On July 3, 2014, the Fifth Circuit Court of Appeals held that Notices of Violation (NOV) issued by U.S. EPA under Section 7413(a) of the federal Clean Air Act do not constitute a final agency action and are not subject to judicial review. The Fifth Circuit’s opinion can be accessed here.
Ninth Circuit Vacates EPA’s PSD Permit for Avenal Power Plant
On August 12, 2014, the U.S. Court of Appeals for the Ninth Circuit vacated U.S. EPA’s PSD permit issued for the Avenal Power natural gas-fired power plant in California that "grandfathered" the facility from having to meet greenhouse gas (GHG) and stricter conventional pollutant limits finalized during the permitting process. A three-judge panel found that the federal Clean Air Act requires EPA to ensure that proposed industrial projects comply with regulations in effect at the time of issuing a permit, not those when the permit application was first filed. The 9th Circuit’s Opinion can be accessed here.
SCOTUS Invalidates EPA’s Tailoring Rule; Upholds GHG BACT For "Anyway" Sources
On June 23, 2014, the U.S. Supreme Court rendered its decision in the Clean Air Act greenhouse gas (GHG) Prevention of Significant Deterioration (PSD) cases. The Supreme Court held that: (1) The Act neither compels nor permits U.S. EPA to adopt an interpretation of the Act requiring a source to obtain a PSD or federal Title V permit on the sole basis of its potential GHG emissions; and (2) U.S. EPA reasonably interpreted the Act to require sources that would need permits based on their emission of conventional pollutants to comply with the Best Available Control Technology (BACT) for GHG emissions. The opinion can be accessed here.
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.
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