Hazardous Air Pollutants

Question 1

What makes an air pollutant “hazardous”?

Answer 1

• serious health issues (Ex: birth defects, reduced fertility, cancer)
• disturbance of hormonal or endocrinal system
• impacts on humans and animals

Question 2

Regulatory Challenges for Hazardous Air Pollutants

Answer 2

-scientific uncertainty
- some populations are more sensitive than others - if you regulate based on most sensitive, costs will go way up
- one side of the equation is much easier to monetize than the other
- applies to both new and existing (no pass for existing sources)
- very difficult to figure out precise impacts and lots of figuring out what levels of risk are acceptable

Question 3

Hazardous AP - Scientific Uncertainty

Answer 3

• ex of mercury - you can’t really test it, so the evidence is more indirect and circumstantial
• different chemical forms w/ different sources and distribution
• lots of different pollutants could theoretically cause the same problem - hard to specifically tie the effects to a single cause

Question 4

HAPs - 1970 CAA

Answer 4

• gave administrator 90 days to come up with list of hazardous air pollutants
• only thing administrator can take into account = health (NO COSTS) -> “ample margin of safety to protect the public health from such hazardous air pollutant”
  -> health-based standard, not tech-based (Admin just prescribes the level necessary to protect public health)

Question 5

Problem with 1970 CAA HAP

Answer 5

• if EPA promulgates the health-based standards, might be so low that it results in shut downs -> EPA promulgates NO standards as a result
  (ex of a statute that by requiring a lot achieves very little)

Question 6

State of New York v. Gorsuch

Answer 6

• 1983
• NY sues Reagan EPA -> says needs to promulgate standards for arsenic

Question 7

Reagan Admin Response to Lawsuit

Answer 7

• Rucklehaus gets appointed head of EPA -> he is very candid about EPA’s dilemma - VERY difficult to figure out threshold due to scientific uncertainty

Question 8

Public Health vs. Human Health

Answer 8

• public health gives more wiggle room
• human health tougher standard b/c you’re trying to protect individual humans, vs public health involves some q of how many people does it take to impact the general public

Question 9

NRDC v. Thomas

Answer 9

• deals with an EPA rule on hazardous air pollutants
• heard first at DC Circuit panel - rejects the view that EPA can’t take other factors beyond health into account
• gets reheard en banc -> unanimously reverses the panel + concludes can’t take econ effects into account, can only look at human health

Question 10

Benzene Proposed Rule

Answer 10

• following the DC Circuit decision, trying to figure out what is the acceptable risk looking at just human health

Possible Approaches:
A- case by case considering individual risk, population risk, and distribution of risks
B- population risk with one cancer per year per source category deemed acceptable
C- individual risk of 1/10,000 cancer acceptable
D- individual risk of 1/1 million cancer acceptable

Question 11

Benzene - Final Rule

Answer 11

• individual risk no higher than 1/1K presumptively acceptable
• also need to consider # of people exposed to the risk, and weight of evidence and scientific uncertainty
• margin of safety analysis - protect “greatest number of persons to individual lifetime risk no higher than 1 in 1 million”
• note that as these factors are applied to benzene, the rule does still leave individual risk of 1 in 5,000

Question 12

1990 Amendments HAPs and Sources

Answer 12

• draw distinction between area sources and major sources (major source = 10 tons per yr or more of any hazardous air pollutant or 25 tons per yr or more of any combo of haz air pollutants)
• also looked at different categories of sources - can be very specific

Question 13

1990 Amendments - List of HAPs

Answer 13

• in addition to threat of adverse human health effects, now adds adverse environmental effects (pollutant listed as HAP when it presents these)
• also precisely lists the 189 HAPs at the outset and leaves it to Administrator to revise (vs. making EPA determine it in the first instance)

Question 14

1990 Amendments - Section 112(d)

Answer 14

• standard = MACT (maximum achievable control technology)
• means max degree of reduction in emissions taking into consideration cost of achieving such reduction and any non-air quality health and env impacts and energy requirements (very precise way of calculating this for new sources)
• everybody approved of this - the prior health standard had paralyzed EPA

Question 15

1990 Amendments - Section 112(f)

Answer 15

• if MACT isn’t sufficient, you need to do more
• specifically, need to reduce lifetime excess cancer risks to the individual most exposed to emissions to less than one in one million (if you don’t get this through tech, you need to do more)
• theory was to get as much as possible through tech first, then address residual risk

Question 16

Subcategorization Issue

Answer 16

• administrator promulgates emissions standards for “each category or subcategory of major sources and area sources”
• can “distinguish among classes, types, and sizes of sources”
• basically, industry tries to exploit this - want their standards to be as individualized as possible so they can get away with doing less

Question 17

Residual Risk Regulation Issue

Answer 17

• q of whether EPA must ensure no indiv exposed to risk greater or equal to a one in one million lifetime risk of cancer
• Section 112(f) would seem to indicate yes

Question 18

Section 112(j)

Answer 18

• hammer provision - if EPA doesn’t promulgate a standard, owners/operators of any major source in a category or subcategory needs to get a permit w/ emissions limitations

Question 19

Natural Resources Defense Council v. EPA - Facts

Answer 19

• DC Circuit 2008
• addresses residual risk issue

Question 20

NRDC v. EPA - Decision

Answer 20

• court holds the 1 in 1 million in 112(f) is just a trigger - statute is ambiguous as to what the reg has to achieve once you conduct it
• says “ample margin of safety” leaves room for discretion
• points to benzene rule (which 112 incorporates) + says that didn’t achieve the 1 in 1 million risk (counterarg would be ambiguous as to whether this was supposed to incorporate the standard just for benzene or actually represents approval of its reasoning)

Question 21

Power Plants and HAPs

Answer 21

• focusing on mercury
• Section 112 has a carve-out for power plants (they said they were being regulated enough by the rest of the CAA) -> 112 says EPA needs to study the issue and decide if reg “necessary and appropriate”
• Clinton admin says is appropriate end of 2000

Question 22

Bush and Mercury

Answer 22

• said regulation of powerplants not necessary and appropriate - said could regulate through Section 111(d) -wanted to do cap and trade, although not really great idea b/c mercury not really fungible
• problem also that 111d only for other pollutants, not hazardous + mercury is hazardous
• DC Circuit decides the Bush reg unlawful in 2008 (never reached the fungibility and cap and trade issues, just said can’t delist the plants from being sources under 112)

Question 23

Obama and Mercury

Answer 23

• 2012
• decides necessary and appropriate to regulate mercury from power plants
• only looks at health effects, no consideration of costs
• MACT for mercury will also impact other emissions (backdoor way to control existing sources, part of multi-pronged attack on existing powerplants)
• EPA does do cost-benefit analysis as part of the regulatory impact analysis (required by law) but says won’t factor it into its MACT
  -> total benefits like $30-$90 billion vs. $9.6 billion in costs, but $ for mercury alone technically lower (difficulty of quantifying statistical life)

Question 24

Michigan v. EPA - Issue

Answer 24

• focuses on the Obama mercury regulation - question of whether or not it was reasonable for EPA to refuse to consider cost when making its finding that regulating emissions of hazardous air pollutants from power plants was “appropriate and necessary”

Question 25

Michigan v. EPA - Decision

Answer 25

• Scalia says needed to consider costs (reads this into appropriate)
• says statutory context reinforces relevance of cost - 112(n)(1)(A) says EPA needs to study hazards to pub health from power plants and determine if reg appropriate and necessary but in 112(n)(1)(B), congress said study mercury emissions from power plants and consider health + env effects, tech, and cost of tech (technically there’s a bit of a distinction here though - (A) said to make the necessary and appropriate decision “considering the results of the study required by this subparagraph” and B technically involved other sources as well)
• q of significance of fact that other parts of CAA expressly mention cost, vs. this section doesn’t (Scalia doesn’t buy this despite American Trucking, he says necessary and appropriate is more comprehensive than requisite to protect pub health)
• leaves agency room how to account for cost though, and doesn’t decide whether it was appropriate for the agency to consider ancillary benefits

Question 26

Michigan v. EPA - Kagan Dissent

Answer 26

• points out that costs did get considered a lot in all the other stages of EPA’s decision

Question 27

Michigan v. EPA - Factual Context of the Decision

Answer 27

• the entire industry had already bought the equipment necessary for compliance - actually a potential problem for them if court overrules because would mean they can’t recover these costs by charging the public
• as a result, the Mercury and Air Toxics Standards winds up being left in place (no one actually wants to get rid of this)

Question 28

Michigan v. EPA and CPP

Answer 28

• the Michigan decision came out in 2015, right around CPP -> during the CPP litigation, states tried to get the DC Circuit to stay the CPP during litigation -> DC refused and they went to Supreme Court
• lawyers argued SC keeps rejecting EPA interpretations of CAA and right after mercury decision EPA Administrator had boasted power plants had already complied anyway - argued the pattern would repeat
• SCOTUS stayed CPP - Prof said wouldn’t have happened without Michigan

Question 29

Obama Admin - Decision Post-Michigan

Answer 29

• decided that consideration of costs did not alter its previous conclusion
• said it wasn’t considering the co-benefit impacts (only looking at pub health and env risks from mercury and non-mercury HAP emissions) but still necessary and appropriate (shouldn’t weigh only what can be monetized)
• it does also say that it can include co-benefits in a formal cost-benefit analysis in response to commenters (think it emphasized IF looks at cost-ben, doesn’t have to)