American Bar Association Energy and Resources Committees

Air Quality Committee

2010-2011 Committee Chair:

N. Jonathan Peress, Conservation Law Foundation, Concord, NH

Hot News

Final Rule to Require States to Revise SIPs to Cover Greenhouse Gas Emissions
December 1, 2010 - EPA Issues SIP Call Requiring 13 States to Revise SIPs to Regulate Greenhouse Gases under the Clean Air Act - EPA's final rule requires Arizona, Arkansas, California, Connecticut, Florida, Idaho, Kansas, Kentucky, Nebraska, Nevada, Oregon, Texas and Wyoming states to make changes to their state implementation plans to cover greenhouse gas (GHG) emissions in Clean Air Act permits. These changes will ensure that beginning in January 2011 GHG emissions sources can obtain permits.

Final Rule (PDF) (124pp, 214k) | Fact Sheet (PDF) (5pp, 36k)

Supreme Court Grants Cert. in Connecticut v. AEP
The US Supreme Court announced on December 6, 2010 that it will hear a challenge to the U.S. Court of Appeals for the Second Circuit decision allowing Connecticut, seven other states, New York City, and three environmental groups to maintain a public nuisance lawsuit against American Electric Power Co. (AEP), the Tennessee Valley Authority, and other utilities that alleged the power companies' carbon dioxide emissions constituted a nuisance under federal common law. [PDF]

EPA Issues GHG BACT Permitting Guidance for States
The U.S. Environmental Protection Agency (EPA) released best available control technology (BACT) guidance to assist state and local air permitting authorities to identify cost-effective pollution reduction options for greenhouse gases (GHGs) under the Clean Air Act. EPA anticipates that, in most cases, this process will show that the most cost effective way for industry to reduce GHG emissions will be through energy efficiency. The guidance does not define or require a specific control option for a particular type of source because BACT is determined on a case-by-case basis. [Site | PDF]

Final Rule to Establish Increments, Significant Impact Levels and a Significant Monitoring Concentration for Fine Particle Pollution
September 29, 2010 - EPA has established key components for making PSD permitting determinations for fine particle pollution - increments, significant impact levels (SILs), and a significant monitoring concentration (SMC).

Final Rule (PDF) (215pp, 401k)
Fact Sheet (PDF) (3pp, 53k)

October 1: EPA and NHTSA Issue Notice of Intent to Develop New Greenhouse Gas and Fuel Economy Standards for Future Light-Duty Vehicles

This Web page provides links to standards and regulations for controlling greenhouse gas (GHG) emissions from new motor vehicles and their engines. For information on regulations aimed at achieving significant reductions of GHG emissions through increased use of renewable fuels, visit EPA's Renewable Fuels Standard home page.

A New Generation of Clean Vehicles

Related Actions

Message from the Chair

The Clean Air Act continues to be among the most relevant and dynamic areas of environmental regulation and with the contributions of many, the Air Quality Committee is keeping pace. For those fortunate to attend the Fall Meeting in New Orleans, we heard from a diverse group of experts on actions to regulate Greenhouse Gas (GHG) emissions, revise and implement National Ambient Air Quality Standards (NAAQS), establish technology based standards for limiting hazardous air pollutants, and EPA’s evolving relationship with state permitting programs. Nearly twenty attended our committee dinner with lively conversation, good food and followed by a trip uptown to see the venerable New Orleans band, the Radiators. Thanks to all of those who made the Fall Meeting so productive and enjoyable, especially the Committee members and Vice Chairs who shared their time, knowledge and company.

As the Obama Administration’s ambitious air agenda proceeds through rulemakings and legal challenges, we are continuing to cover developments with programs and through our Committee Newsletter. Stay tuned for a Quick Teleconference (QT) in November discussing the suitability of the Clean Air Act for implementation of a GHG cap and trade program. A December program will review and discuss the details of the steps EPA is taking to include GHGs as regulated pollutants in the Title V and PSD permitting programs, beginning in January 2011. Early next year, we are planning a QT to discuss EPA’s final new NAAQS for ozone (when promulgated) and others. And for the Annual Conference on Environmental Law in March, we will be examining the role of states as permitting authorities, including perspectives from state agencies, permittees and EPA on State Implementation Plans and the state/federal relationship.

When I began practicing air law in 1993, the Clean Air Act was an important but somewhat obscure legal area among a small group of committed practitioners. Seventeen years later, the profile of the practice and the number of air lawyers is at an all time high. We appreciate the unprecedented interest and all who have recently joined the Air Quality Committee. Please feel free to drop me a note anytime with your thoughts about the Committee and how we can better enhance your practice.

N. Jonathan Peress
Conservation Law Foundation
Boston, Massachusetts

Public Service Project - Spread the Light!

Please consider participating in a public service project open to all members of the Section: the BoGo Solar-Powered Flashlight ("BoGo" stands for "buy one, give one"). With each BoGo light purchased in the developed world, the purchaser chooses an organization to which a second identical light will be donated for distribution in the developing world. The BoGo Light charges with a day of sunlight, provides six to eight hours of use per charge and works for thousands of hours before requiring new rechargeable batteries. These ever-ready lights are useful in the United States, and potentially life-changing in Africa. Most importantly, introducing simple clean technology in rural Africa empowers the recipients to choose sustainable energy options in the future. Purchase one to keep and one to give by visiting http://www.bogolight.com. If you click on "choose where to give," you can select where to give the second flashlight. One of the worthy options is Elephant Energy, a non-profit working to introduce renewable energy technologies in rural Africa. Elephant Energy has teamed up with SunNight Solar to distribute BoGo Solar-Powered Flashlights to villagers committed to promote rural development and nature conservation in Namibia (for details, visit http://www.elephantenergy.org). (If you donate a light to Elephant Energy, and also send an e-mail to elephantenergy@gmail.com with your name and e-mail address, they will send you a picture of the recipient in Africa holding the donated light with your name written on it). Please contribute to this important cause and help make a positive impact on the world.

Discussion Board

The Section has also made available to us a new Discussion Board. This will allow us to communicate and collaborate with each other on a topic of interest. With almost 600 members in our committee, this Discussion Board should serve as a wonderful tool for discussions on air issues. This service will be in addition to the list serve, which we will continue to use for notices of latebreaking information and other committee communications. Our committee’s Web page is also a good resource for air quality information. The Air Quality Committee continues to have a strong leadership team who help bring value to your membership in our committee. Our current team is listed in the Leadership module on the right hand side.

Hot News!

EPA issues Proposed Endangerment Finding for Greenhouse Gases under the Clean Air Act
On April 17, 2009, the EPA formally proposed to make a finding that carbon dioxide and five other heat-trapping gases emitted by motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. Once published in the Federal Register, the proposed endangerment finding will trigger a 60-day public comment period before EPA can issue a final finding. A pdf of the proposal is attached. More information is available at the following link: http://epa.gov/climatechange/endangerment.html#warming

EPA GHG endangerment proposal pe-pub.pdf

EPA Proposes First National Reporting on Greenhouse Gas Emissions
On March 10, 2009, EPA proposed a comprehensive national system for reporting emissions of carbon dioxide and other greenhouse gases produced by major sources in the United States. The new reporting rule would apply to suppliers of fossil fuel and industrial chemicals, manufacturers of motor vehicles and engines, and large direct emitters of greenhouse gases with emissions equal to or greater than a threshold of 25,000 metric tons per year. Approximately 13,000 facilities, accounting for about 85 percent to 90 percent of greenhouse gases emitted in the United States, would be covered under the proposal. The rule was published in the Federal Register on April 10, 2009, and the comment period expires on June 9, 2009. Pdfs of the proposed rule and preamble to the proposed rule are attached. More information on the proposed rule is available at the following link: http://www.epa.gov/climatechange/emissions/ghgrulemaking.html

GHG Reporting Proposed Rule.pdf | GHG Reporting Proposed Rule - Preamble.pdf

Clean Air Interstate Rule Reinstated
On December 23, 2008, the DC Circuit reinstated the CAIR Rule and remanded the rule back to EPA for further rulemaking to address the defects identified in the court's July 11, 2008 decision.

EPA Final Rule on New Source Review Aggregation
O n January 12, 2009, EPA issued a final rule addressing aggregation for purposes of the federal New Source Review (NSR) program. Aggregation groups together multiple, related physical or operational changes into a single project for evaluating requirements under the NSR program.

EPA Memorandum on the Deseret Decision
On December 18, 2008, EPA issued an interpretative memo describing what air pollutants are subject to the federal Prevention of Significant Deterioration (PSD) program as "regulated NSR pollutants." In the memorandum, EPA Administrator Johnson interprets the phrase "regulated NSR pollutants" to exclude pollutants for which EPA regulations only require monitoring or reporting and not actual control of emissions.

EAB's Deseret Power decision
In a November 13, 2008 decision in In the Matter of Deseret Power Electric Cooperative, EAB App. No. PSD 07-03, the EPA Environmental Appeals Board (EAB) remanded a Prevention of Significant Deterioration (PSD) permit for the Deseret project back to EPA Region VIII for a determination of whether Best Available Control Technology (BACT) is required to limit the proposed coal-fired power plant's CO2 emissions. The EAB held that held that agency has the discretion to determine which pollutants are "subject to regulation" under the Clean Air Act, and the PSD permit was remanded to the region to develop a record for its decision.

About the Committee

The Air Quality Committee provides a valuable forum and practical resources for lawyers interested in air-related issues. Committee members range from experienced practitioners to those who deal with air quality issues on only an occasional basis. The Committee provides information to its members through the programs it presents and its contributions to the various ABA publications. The Air Quality Committee assists its members with:

keeping up to date on new developments, through extensive communications such as newsletters, satellite conferences and seminars;
exchanging ideas and Best Practices with other practitioners around the country; and
maintaining involvement with the environmental lawyer community by contributing to various ABA SEER publications and participating in SEER events.

We have one of the largest sections in the Year in Review, which covers new laws, regulations and recent cases affecting air quality, and we publish a quarterly newsletter with articles and items of interest. While most of our work is done by our excellent and hardworking Vice-Chairs, we are always looking for members interested in getting involved in committee activities.