Victor Flatt on CPRBlog {Bio}
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In North Carolina, Open Season on Poverty Advocates

Today I joined a group more than 40 environmental law professors and clinicians from institutions around the nation in a joint letter to the University of North Carolina System Board of Governors urging that they reject a recommendation to shutter the Center on Poverty, Work and Opportunity, housed at the University of North Carolina Law School. That unfortunate recommendation arose from a special committee created by the board at the direction of the legislature to review all 237 of the state university system’s centers, in the wake of criticism of state anti-poverty efforts by the Center’s director, Professor Gene Nichol.

To be clear, the Center takes no money from the state, and hasn’t since 2009. It’s funded by private contributions. It’s being targeted not to save money, but because some in the legislature would rather not have to be reminded of poverty, and don’t have the stomach for criticism of their policies. And since Professor Nichol’s criticisms were a trigger for the special committee’s review, it’s no surprise that the committee has taken aim at the Center.

I’m not directly affiliated with the Center, but our Center for Law, Environment, Adaptation, and Resources (CLEAR) at UNC Law has been looking to work with both the Poverty Center and the Carolina Law School’s Center for Civil Rights to try and address how to minimize the disparate impacts on the poor and minorities from climate change that are going to happen at the North Carolina coast.  But aside from my belief that the Poverty Center has much to contribute to advancement of environmental protection, I and my environmental colleagues around the country are writing because we find it hard to sit by while legislators seek to muzzle their critics in academia. Here’s what we say in the letter:

We represent a national group of environmental law professors and clinicians from over forty public and private law schools.  Our discipline has faced similar politically motivated criticisms in the past, and will likely do so again in the future.  We urge the North Carolina Board of Governors, and all regulators of institutes of higher education, to reject basing university decisions on the popularity of political positions.  We come to this position based on important experience in our environmental legal field.

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The EPA Addresses Residual Risk for Hazardous Air Emissions at Refineries

On May 14, 2014, the EPA proposed new rules to control “residual risk” from hazardous air emissions (such as from benzene) at the nation’s petroleum refineries.

The Clean Air Act requires the EPA to calculate whether or not residual risk to human health exists after the agency has put Maximum Achievable Control Technology (MACT) in place to control hazardous air emissions.  Studies have long shown residual risk to the public after MACT was put in place at refineries, and this finding forms the legal basis for this rule.  In particular, the EPA proposes addressing more fugitive emissions, addressing emissions controlled during changes in facility operation, and putting new requirements on storage vessels.

The last EPA rulemaking on residual risk from refineries occurred during the George W. Bush administration (initiated in 2002), and that proposal was controversial in at least three respects.  First, it wasn’t clear that the amount of exposure being measured was accurate, since there were few actual monitors in place.  Second, there was significant disagreement with the EPA’s decision at that time to only reduce residual risk to one excess death in 10,000, though this was legally upheld, and third, the proposed requirements to implement the residual risk controls were all recognized as actually creating profit at refineries because they were failing to recapture valuable chemical during the refining process.

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EPA’s ability to regulate cross-state pollution unnecessarily at stake: SCOTUS should uphold transport rule

Earlier this week, the Supreme Court heard oral argument in EME Homer City Generation v. EPA.  At issue in the case was the ability of EPA to regulate cross-state pollution, or pollution generated in some states that is carried over to others downwind. Eight “downwind” states, primarily in the Northeast, filed a brief in support of the Court’s review of a previous decision by the D.C. Circuit Court of Appeals, which struck down the rule EPA implemented to regulate cross-state pollution.

The rule stems from the “Good Neighbor” provisions of the Clean Air Act, which calls on EPA’s good judgment to address the issue of one state unfairly polluting another. More than 90% of ozone levels in Connecticut stem from out of state pollution sources, contributing to the soaring levels of asthma and respiratory illness in the area. In order to mitigate this kind of pollution from other states, the EPA devised a cost-based system to determine what kind of plan an upwind state must implement in order to reduce pollution when the state has inadequately created its own plan to limit its pollution in other states, also known as the transport rule.  Upwind states, industry and labor groups argue that the federal government is inappropriately inserting itself into a decidedly state issue when the federal government does not have adequate information to assign pollution-reduction plans.

Most reports of the oral arguments interpret a favorable stance from the Justices towards the EPA’s cost and science-based approach to regulate what it describes itself as a “dense spaghetti-like matrix.”  However, and as I’ve discussed in this space before, the procedural questions about whether the D.C. Circuit should have reviewed the transport rule in the first place, largely escaped the attention of the Justices even though the issue was briefed.  

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Downwind States Deserve Protection: Supreme Court’s Review of Decision Gutting Cross-State Pollution Protections Right on Point

Last month, the U.S. Supreme Court granted certiorari, or review of  EME Homer City Generation v. EPA, 696 F.3d 7 (D.C. Cir. 2012), reh’g en banc denied, 2013 WL 656247 (D.C. Cir. Jan. 24, 2013). This is a welcome development, as the D.C. Circuit Court of Appeals got many things wrong in its tossing out of the Cross State Air Pollution Rule (CSPAR), the follow-up to the previously invalidated Clean Air Interstate Rule (CAIR) which regulated potential cross-state air pollution. For example, although an oil refinery one state may meet its own air quality, but not in state nearby where it might be polluting neighboring cities. CSPAR would hold states accountable for their pollution of their neighbors, which the D.C. Circuit Court of Appeals tossed out last year.

This case was brought to the D.C. Circuit on consolidated challenges to the EPA’s attempt to implement the CSPAR. Basically, the rule and its pieces and subsidiaries were designed to ensure that the states did not cause significant “interference” with “maintenance” of National Ambient Air Quality Standards (NAAQS) in downwind states. (This has also been referred to as the “good neighbor provision,” or Section 110(a)(2)(D) of the Clean Air Act). The problem of interstate transport of major air pollutants has become more apparent over the last 15 years, and it has become obvious that many states will never be able to meet the safe levels of air pollution within their own borders without controlling the pollution from other states, which the EPA is required to do. The complexity of the issue and whether and how the EPA will deal with it has been the subject of litigation since 1998. This rulemaking was the culmination of an attempt to create a systematic approach to dealing with the problem.

The Court of Appeals held for some of the plaintiff states and industry and overturned CSAPR because: 1) it claimed that the EPA’s plan improperly failed to reduce only an upwind state’s share of contributions to a downwind state’s nonattainment; and 2) the EPA erred in simultaneously implementing a Federal Implementation Plan (“FIP”) instead of allowing the states to first propose a State Implementation Plan or SIP that would reduce the EPA-determined significant contribution to downwind states.

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Obama Administration Withdrawing EPA Ozone Standard an Illegal and Immoral Move

Today’s decision of the Obama administration to withdraw new ozone rules is not only bad policy, it is also illegal. The Clean Air Act requires the EPA to revisit its National Ambient Air Quality Standards (NAAQS) every five years to ensure that they are adequate to protect the public health and safety. In 2006, the Bush Administration revisited the rules as required, but proposed a new standard of .75 P.P.M., which was far above the unanimous recommendations of the scientists who said somewhere between .60 and .70 P.P.M. was necessary to protect the public health. A lawsuit followed, and in response the Obama administration re-opened the rulemaking. This delayed a legal decision which most assuredly would have over-turned the 2008 final rules.

The Obama EPA proposed the more rigorous standards that could be supported by the science of 2006. In truth, new evidence suggests that the .60 to .70 limit itself may be too lenient, and that tens of thousands of people every year face premature deaths due to ozone.

Now, the Obama administration, noting that the standards will be revisited again in 2013, after the election, has withdrawn the rulemaking, in the name of regulatory relief.

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Texas is Arguing that EPA Acted Faster than It's Allowed in Air Permitting Move. Texas is Wrong.

On Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC Circuit. This follows Texas’s request for an emergency stay on the rulemaking which declared GHGs subject to regulation under PSD in the DC Circuit, and later in the Fifth Circuit, both of which were denied.

This time, however, perhaps because it was a holiday, the DC Circuit (without ruling on the merits) entered a temporary stay until the issue could be considered more fully today, January 6. Texas and its supporters are arguing that the EPA should get reversed on this one because it might have violated procedural notice and comment requirements under the CAA in acting so quickly. But this is not the case, as the EPA has followed all relevant procedural requirements necessary for implementing a partial Federal Implementation Plan (FIP) in the face of the inadequacy’s of Texas State Implementation Plan (SIP) as it applies to greenhouse gases now “subject to regulation.”

The modern Clean Air Act is a federal creation based on Congress’s commerce clause power. The federal government’s ability to preempt state action in the area has been upheld on several occasions.   The Clean Air Act does have a dual federalism model which recognizes that the states can have a role to play in implementation. Specifically, the CAA allows states to have an opportunity to implement CAA requirements within the state’s borders (CAA Sec. 110).

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Welcome Clarity and Few Surprises in EPA's Guidance on Greenhouse Gas Permitting

Last week the EPA released its “PSD and Title V Permitting Guidance For Greenhouse Gases.” This Guidance was designed to give the states direction in how to implement permitting requirements for new sources for other criteria pollutants that also produce greenhouse gases on January 2, 2011, and new sources of greenhouse gases following in May, 2011, under the Clean Air Act’s Prevention of Significant Deterioration Program.

The Guidance does an excellent job of summarizing and explaining how the EPA’s current PSD permitting program works (it is the best succinct and correct explanation I have seen), and explains how the procedure applies with the addition of greenhouse gases to the list. Importantly, it reaffirms the current five-step standard for determining what is “Best Available Control Technology” under the PSD program. The Guidance first advises permitting authorities in making an applicability determination based on whether there is an emissions increase under the complex regulatory formulae (and subject to the de minimis current requirements and the new ones for greenhouse gases). Then the Guidance moves on to the five-step process, which requires the permitting authority to evaluate what the best processes are for reduction, rank them in order, then evaluate them one by one for excessive environment, energy, or economic cost until one is deemed sufficient to implement for the BACT.

The Guidance goes on to suggest that energy efficiency is certainly likely to be the most promising BACT for most greenhouse gas producers. The EPA suggests that permitting authorities who require energy efficiency initiatives look at design features as well as end-of-pipe requirements, and favorably comments on more efficient boiler designs such as boilers with supercritical and ultra-supercritical steam pressures. Importantly, the agency does not endorse fuel switching as a BACT for coal fired power plants, though neither does it rule it out, leaving the possibility open for states to require it.

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Tailoring Rule Draws Multiple Challenges

Cross-posted from Flatt Out Environmental.

As expected, the EPA's "tailoring rule," under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states (the usual suspects including Texas), and more surprisingly several environmental organizations.

The crux of industry and state challenges to the tailoring rule is that it is illegal pure and simple. Specifically, the challenges note that the CAA requires that when the EPA regulates stationary sources under the CAA, that it do so for sources that emit over either 100 or 250 tons per year. Of course, industry doesn't really want all of these smaller sources regulated, but they want to make it virtually impossible for EPA to regulate at all. If the EPA had to regulate all of these small sources, regulation would be virtually impossible. (EPA's primary argument for the legality of the tailoring rule is a doctrine known as "administrative impossibility"). Even if the EPA tried to, Congress would surely take action then to suspend the regulation (something that it has not been able to do so far, though several Senators have tried).

The environmental organizations take the other tack, claiming that while they don't oppose "tailoring" out small sources, that the level is not small enough. (They prefer 25,000 tons per year).

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EPA Threads the Needle with New CAIR Rule

On Tuesday, the EPA released its long awaited rule to replace the Bush era Clean Air Interstate Rule, invalidated by the DC Circuit in 2008’s North Carolina v. EPA. There are many things that could have been different or improved, but given the EPA’s need to get a rule out quickly to replace the existing rule, they have done a good job of addressing the flaws of the earlier rule and getting something in place.

The main problem with the previous CAIR was that in allowing full interstate trading of SOx and NOx, it was in violation of the CAA requirements in Section 110, that a state’s State Implementation Plan ensure that no other state’s attainment and maintenance is violated, and Section 126, which requires the EPA and states to control individual sources that cause a violation in another state.

In the new Rule, the EPA allows full intra-state trading of the pollutants, but limits interstate trading in such a way as to ensure that no one state gets stuck with increasingly localized pollutants. This means that states do not have to worry that the trades will end up concentrating the pollution in such a way as to continue to cause their state SIPs to be violated. While we can’t be sure that this rule will be upheld, I believe that it addresses the major flaw in the earlier case. The court has previously allowed the EPA to set control requirements based on marginal cost of control, so that should not be a problem either.

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Texas' Clean Air Act Alamo May Win the Environmental War for us All

In the little-followed but hugely important “joint federalism” system through which our environmental laws are implemented, a seismic change may be afoot that could vastly improve environmental compliance and environmental quality in the future.

Last week, Al Armendariz, the head of the Environmental Protection Agency’s Region VI, indicated that unless significant changes are made by July 1, 2010, the EPA will take over Texas’s Clean Air Act program because of failures to follow the requirements of the Clean Air Act. The EPA last week already took control of an important Title V permit in Corpus Christi, and noted specific and severe deficiencies in 39 other Texas permits, indicating that it would take over them as well. This is significant in and of itself since it shows that the EPA is willing to use its over-filing powers as much as necessary to try and correct permit problems in a state air program. But setting a specific date to take over the entire state Clean Air Program is unprecedented.

A general reading of the CAA would not indicate that this is such a big deal. In fact the CAA specifically notes that if a state fails to follow the minimum federal requirements necessary in its state implementation plan (SIP) for the CAA, the federal government must implement a Federal Implementation Plan, and can also take control of all of the CAA program. This was designed as a failsafe to ensure that the states met the minimum standard that the CAA required. But  it quickly became apparent that the EPA didn’t have the resources to follow through on such threats, and since the 1980s, the EPA has instead relied on cajoling and occasional permit disapprovals to try and bring state programs into line. But Texas' behavior with respect to the CAA has been so outrageous that it may have finally forced the EPA’s hand. Starting in the 1990s, the Texas Commission on Environmental Quality (TCEQ) has allowed “flexible” permits in violation of EPA’s recommendation.   These permits allow plants to make significant changes in pollution sources within a facility if the overall pollution doesn’t exceed a certain level.   The problem was that it masked some efficiency upgrades which would require new pollution control equipment and made general monitoring more difficult. Data last year showed that many of these plants were already exceeding their permits by 100 percent.

Though it has taken the EPA more than 14 years (!) to formally disapprove this part of Texas’s SIP, the EPA has indicated for years, from the Clinton through the Bush administration, that this part of the Texas program violates basic provisions of the CAA. But Texas refused to budge.  Instead, it did everything it could to hold onto and do whatever it wished with its air program.

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