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Environmental Law > Clean Air Act > Flashcards

Clean Air Act Flashcards

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1
Q

Primary Pollutants vs. Secondary Pollutants

A
  • primary pollutants emitted directly from sources
  • secondary pollutants form in the atmosphere (different compounds coming together with heat)
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2
Q

Kinds of Sources Under CAA

A

Only two:
- stationary
- mobile

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3
Q

Criteria Pollutants

A
  • sulfur dioxide
  • nitrous oxides
  • particulate matter
  • carbon monoxide
  • lead
  • ozone
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4
Q

Hazardous Air Pollutants

A
  • certain pollutants that are considered more toxic -> regulated separately under statute because sources and toxicity different
  • mercury + benzene
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5
Q

Kinds of Pollutants under CAA

A
  • criteria pollutants
  • hazardous pollutants
  • other regulated pollutants
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6
Q

What makes something a criteria pollutant?

A
  • numerous diverse sources
  • endangers public health or welfare
  • (or ones for which EPA already developed criteria pursuant to CAA of 1963)
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7
Q

What makes something a hazardous pollutant?

A
  • threat of adverse human health effects
  • or adverse environmental effects
  • not numerous, diverse sources
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8
Q

What makes something an “other regulated pollutant?”

A
  • endangers public health or welfare
  • not numerous, diverse sources
  • not hazardous pollutant
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9
Q

CAA Section 108

A
  • requires EPA to identify “air pollutants” anticipated to endanger public health or welfare and to publish air quality criteria
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10
Q

CAA 109

A
  • requires EPA to adopt nationally uniform ambient air quality standards (NAAQSs) for criteria air pollutants
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11
Q

CAA 110

A
  • requires states to develop + submit to EPA for approval state implementation plans (SIPs) specifying measures to assure that air quality within each state meets the NAAQSs
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12
Q

CAA 111

A
  • requires EPA to establish nationally uniform, technology-based standards for major new stationary sources of air pollution - New Source Performance Standards (NSPS)
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13
Q

CAA 112

A
  • mandates technology-based standards to reduce listed hazardous air emissions from major sources in designated industrial categories, with additional regulation possible if necessary to protect public health with an “ample margin of safety”
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14
Q

CAA Part C

A
  • 160-169A
  • specifies requirements to prevent significant deterioration of air quality (PSD) for areas with air quality that exceeds the NAAQSs
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15
Q

CAA Part D

A
  • Sections 171-178
  • specifies requirements for areas that fail to meet the NAAQSs (nonattainment areas)
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16
Q

CAA Title II

A
  • 202-216
  • requires EPA to establish nationally uniform emissions standards for automobiles and light trucks that manufacturers must meet by strict deadlines
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17
Q

CAA Title III

A
  • Section 304 authorizes citizen suits against violators of emissions standards and against the EPA administrator for failure to perform non-discretionary duties
  • Section 307 authorizes judicial review of nationally applicable EPA actions exclusively in the US Court of Appeals for the DC Circuit
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18
Q

CAA Title IV

A
  • creates system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources to reduce acid precipitation
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19
Q

CAA Title V

A
  • requires permits for all major industrial sources w/ state administration and federal oversight
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20
Q

CAA Title VI

A
  • establishes a program for controlling substances that contribute to depletion of stratospheric ozone
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21
Q

Clinton Admin - GHGs

A
  • Clinton did nothing to address climate change b/c not a great political issue for him - there was a pretty good statutory argument that GHGs were air pollutants, but Clinton didn’t want to admit this
  • ‘99 Carol Browner (Administrator of EPA) -> makes a statement in a congressional hearing that C02= air pollutant
  • General Counsel of EPA put out an opinion saying yes air pollutant, but not gonna regulate
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22
Q

Bush Admin - GHGs

A
  • Bush made a campaign pledge that he would regulate carbon dioxide from power plants
  • appointed people to his cabinet who cared deeply about climate change
  • BUT March 2001 signed a letter saying CO2 not a pollutant under CAA w/o consulting EPA or DOJ
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23
Q

Mendelsen Petition

A
  • filed petition arguing that CO2 endangers public welfare + C)2 from new motor vehicles should be regulated
  • Bush EPA debate over what to do with it - career people think best to ignore, political appointees want to deny (want to cement the policy)
  • further debate over Chevron II or Chevron I and Brown v. Williamson - career people say Chevron II, political appointees say the later
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24
Q

Reasons for Denial of Mendelssen Petition

A

Bush EPA says no authority to regulate - CO2 not an air pollutant b/c:
- Congress not aware of climate issue when relevant provisions enacted
- global nature of climate change makes it fundamentally different from the air pollution problems Congress sought to address in 1970
- climate change not fit Congressional 1970 assumptions about role of individual states
- no CAA provision specifically authorizes climate change regulation
- only CAA climate provisions authorizes only non-regulatory approaches, studies + reports
- Congress aware of issue but prior congressional proposal to authorize climate regulation failed

25
Q

Bush Admin - Arg on Timing

A

Said not right time to exercise the authority - exercising discretion not to make endangerment determination
- regulate other sources first
- voluntary approaches first
- scientific uncertainty
- unilateral US action would weaken our negotiating position with other countries

“in light of the considerations” - tactical mistake (three of the four of these considerations are things EPA’s statute doesn’t allow it to consider)

26
Q

Massachusetts v. EPA - DC Circuit

A
  • 2005
  • gov tried to argue Brown v. Williamson - judges didn’t buy it
  • winds up being split decision among the three judges (each files own op - one no standing, one EPA had discretion, one Mass wins)
27
Q

Mass v. EPA - Authority Issue

A
  • EPA has authority to regulate carbon dioxide - sweeping statutory definition of air pollutant (“ANY air pollution agent or combination of such agents, including ANY physical, chemical…substance of matter which is emitted into or otherwise enters the ambient air
  • distinguishing from Brown v. Williamson - regulating CO2 (vs. FDCA sought to ban tobacco entirely) and in Brown v. Williamson there were congressional enactments that only made sense if adopted against backdrop of no FDCA authority over tobacco
28
Q

Mass v. EPA - Discretion Issue

A
  • EPA reasoning was “divorced from the statutory text”
  • statute does condition EPA exercise of authority on its formation of a “judgment,” the judgment needs to relate to endangerment to public health or welfare -> can’t pull in outside policy considerations Congress hasn’t told it to consider (which EPA had done here)
  • “judgment is not a roving license to ignore the statutory text” - “direction to exercise discretion within defined statutory limits”
  • says EPA has “significant latitude as to the manner, timing, content, and coordination of its regulations w/ those of other agencies,” but once it responds to a rulemaking petition, reasons need to be those that the statute told it to consider
  • EPA also can’t avoid by invoking scientific uncertainty - if there’s really a lot of uncertainty, it needs to say there’s uncertainty
29
Q

Mass v. EPA - Result

A
  • Case gets remanded to EPA, BUT SCOTUS says EPA has discretion on remand - “we need not and do not reach the question whether on remand EPA must make an endangerment finding”
  • “We hold only that EPA must ground its reasons for action or inaction in the statute”
30
Q

Mass v. EPA - Scalia Dissent

A
  • says EPA Administrator isn’t required to make a judgment whenever there’s a rulemaking petition
31
Q

Inflation Reduction Act Amendments to Clean Air Act

A
  • Section 60111 - seems like this is dedicated to supporting more transparency on corporate climate action commitments, plans, and progress on meeting these
  • contains definition of greenhouse gas - “air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride”
32
Q

Air Quality Trends Under Clean Air Act

A
  • basically, criteria air pollutant concentrations have dropped significantly since 1990 (although some pollutants continue to pose serious air quality problems) - combined emissions dropped 77%, while US economy continued to grow (energy use increased)
33
Q

Benefits and Costs of Clean Air Act

A
  • benefits include prevention of deaths (adult and infant), ozone mortality, chronic and acute bronchitis, acute myocardial infarction, asthma, hospital + emergency room visits, + more
  • benefits $2 trillion vs costs $65 billion
34
Q

Establishing NAAQSs

A
  • list criteria pollutants
  • develop criteria assessing public health and welfare impacts at varying levels of concentrations
  • promulgate NAAQSs: uniform, national, adequate margin of safety, HEALTH AND WELFARE BASED ONLY
35
Q

Listing Criteria Pollutants

A

Section 108 - says Administrator shall publish and from time to time revise list “which includes each air pollutant:
A) emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;
B) presence of which in the ambient air results from numerous diverse mobile or stationary sources; AND
c) for which air quality criteria hadn’t been issued before DEc 31 1970 but for which Admin plans to issue air quality criteria under 108

36
Q

Establishing Criteria

A

Also Section 108 - shall issue air quality criteria -> air q criteria “shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air”

Shall include info on: factors that can alter the pollutant’s effects on public health/welfare, types of air pollutants which can interact w/ pollutant to produce adverse effect on public health or welfare, + any known or anticipated adverse effects on welfare

37
Q

Promulgating NAAQSs

A

Section 109:
- for anything regulated prior to Dec 31, 1970, Administrator needs to publish regs on national primary ambient air quality standards and national secondary ones within 30 days of Dec 31, 1970
- for any pollutant that gets listed after that, need to do the primary and secondary NAAQSs at the same time as you issue the criteria and info on the pollutant

38
Q

Primary vs Secondary NAAQSs

A
  • primary = attainment + maintenance of these NAAQSs in judgment of Admin, based on such criteria + allowing adequate margin of safety, are requisite to protect public health
  • secondary = attainment and maintenance of which in judgment of Admin, based on such criteria, requisite to protect public welfare from any known or anticipated adverse effects (doesn’t seem to have same req of adequate margin of safety, + pub welfare different from pub health)
  • primary more concerned about protecting the health of sensitive populations, secondary more concerned about protecting the environment
39
Q

Lead Industries Association v. EPA

A
  • DC Circuit, 1980, written by Judge Skelly Wright
  • lead industry had tried to say can only protect public from effects known to be clearly harmful (q of whether EPA can include health effects not yet known for certain)

Holding:
- costs of achievement of NAAQSs irrelevant
- economic and technology feasibility of NAAQSs irrelevant
- NAAQSs need to be uniform
- court also said adequate margin of safety (Admin gets to consider how to deal with scientific uncertainty, plus act emphasized prevention and precaution)
- Admin needs to give particular attention to effects of pollution on most vulnerable

40
Q

Revising NAAQS and CAASAC

A

CAASAC= Clean Air Act Scientific Advisory Committee
- Section 109 still
- need to review the criteria and revise at five year intervals as may be appropriate, + need to appoint independent scientific review committee that also reviews the criteria and the NAAQSs and makes recommendations

41
Q

Particulate Matter

A
  • epidemiological evidence very strong
  • no scientific explanation
42
Q

Ozone

A
  • no stopping point, no thresholds
  • adverse effects go do, but not to zero (industry and env differ on appropriate ppm level)
43
Q

American Trucking Associations Inc v. EPA- Facts

A
  • DC Circuit 1999
  • EPA issued rules revising NAAQSs for ozone and particulate matter in 1997
  • the rules indicated that any amount of particulate matter or ozone posed a possibility of some human health risk
  • the rules revised the ozone NAAQSs from .09 to .08, but didn’t explain how new level was set or how it worked
  • an internal EPA report said threats to public health decreased with each incrementally lower concentration level
  • American Trucking and other groups petition for review -> say the new NAAQSs failed to articulate clear standards to guide application of the relevant act provisions
44
Q

American Trucking v. EPA - Decision

A
  • court says EPA needs to find an interpretation that circumscribes its enforcement authority - EPA needs to be able to articulate clear standards that adequately limit its enforcement authority under Clean Air Act ambiguous provisions
  • EPA’s 1997 rules failed to articulate how EPA determined how much PM or ozone is too much
45
Q

American Trucking Association v. Whitman - Questions Presented

A
  • whether Clean Air Act delegates legislative power to EPA
  • whether Administrator may consider costs of implementation in setting NAAQS
46
Q

American Trucking v. Whitman - Cost Consideration

A

EPA can’t consider costs
- costs not mentioned in Section 109
- subsequent amendments to the CAA have added more provisions directing cost consideration (Congress expressly said to consider them in certain places, shouldn’t assume consideration in others) - worth noting in this light though that it does say the commitment needs to be a clear one b/c 109 is so important to the whole act (“engine that drives nearly all of Title 1 of the CAA”)
- “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions” -> no “elephants in mouseholes”
- invokes MCI to say “adequate margin” and “requisite” unlikely vehicles for Congress to give EPA such a major decision as whether implementation costs should moderate NAAQSs
- costs so indirectly related to pub health and “full of potential” for canceling conclusions drawn from direct health effects that would “surely have been expressly mentioned” if Congress intended consideration

47
Q

American Trucking v. Whitman - Nondelegation

A
  • scope of discretion is “well within the outer limits of our nondelegation precedents”
  • interprets Section 109 (in accordance with Solicitor General view) to mean NAAQSs need to be “requisite to protect public health from the adverse effects of the pollutant in the ambient air” -> requisite = “sufficient, but not more than necessary”
48
Q

Achieving the NAAQSs

A
  • Section 110 - state implementation plans (SIPs)
  • Section 202 - motor vehicle controls
  • Section 111 - New Source Performance Standards
49
Q

SIPs

A
  • Section 110
  • within 3 yrs of promulgation or revision of an NAAQS, state needs to adopt + submit a plan to the Administrator
  • plan needs to provide for implementation, maintenance, and enforcement of primary standards in each air quality control region
50
Q

Motor Vehicles

A
  • Section 202
  • Admin proscribes standards applicable to emission of any air pollutant from any class/classes of new motor vehicles which in his judgment cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare
51
Q

New Stationary Sources

A
  • Section 111
  • subject to BADT standard of performance
  • means the degree of emission limitation achievable through the application of the best system of emission reduction that the administrator determines has been adequately demonstrated
  • provision expressly says “taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements”
52
Q

Requirements for State SIPs

A
  • need to include enforceable emission limitations
  • provide for monitoring of ambient air quality
  • prohibit any source or other type of emissions activity that contributes significantly to nonattainment in other states
  • provide assurances the state has enough personnel + funding to carry out the plan
  • meet applicable requirements of part D (relating to nonattainment) and part C (relating to prevention of significant deterioration of air quality and visibility protection)
53
Q

SIP Deadlines for Achieving NAAQSs

A
  • primary: no more than 3 years (later 5)
  • secondary: “reasonable time” and “as expeditiously as practicable”
54
Q

Union Electric Company v. EPA

A

1976
- Administrator doesn’t have the authority to reject a SIP “on the ground that it is economically and technologically infeasible”
- as long as the SIP meets NAAQSs, EPA has to approve
- states can be stricter if they want

55
Q

Long Term CAA Challenges

A
  • what to do if NAAQSs not being met over time
  • what to do about areas cleaner than NAAQSs
  • what to do about how problems caused by interstate
56
Q

SIP Approval

A

Section 11(k)(3) - Admin approves if it meets all applicable reqs, + if meets part, can approve in part and disapprove in part

57
Q

SIP Call

A

Section 110(k)(5) - Calls for plan revisions
- when admin finds applicable implementation plan = “substantially inadequate” admin shall require state “to revise the plan as necessary to correct such inadequacies”

58
Q

Refinements Made by CAA Amendments of 1977 and 1990

A
  • prevention of significant deterioration (part C)
  • nonattainment provisions (part D)
  • interstate controls

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