The Clean Air ActThe Clean Air Act

Clean Air ActClean Air Act

► The CAA contains requirements for man-The CAA contains requirements for man-made sources of air pollution, including such made sources of air pollution, including such things as cars and other transportation things as cars and other transportation sources, mines, utilities, construction sites sources, mines, utilities, construction sites and manufacturing plants.and manufacturing plants.

► The CAA originated in legislation enacted in The CAA originated in legislation enacted in 1955.1955.

► The most important CAA provisions, The most important CAA provisions, however, resulted from major amendments however, resulted from major amendments in 1970, 1977 and 1990.in 1970, 1977 and 1990.

Regulation of Criteria Regulation of Criteria PollutantsPollutants

► Primary National Ambient Air Quality Standards (NAAQS), which are Primary National Ambient Air Quality Standards (NAAQS), which are established in order to protect the public health and welfare established in order to protect the public health and welfare

► The EPA has promulgated NAAQS for following six air pollutants: The EPA has promulgated NAAQS for following six air pollutants:

Carbon monoxide (CO): Carbon monoxide is a poisonous gas that results from the Carbon monoxide (CO): Carbon monoxide is a poisonous gas that results from the incomplete combustion of fuels such as gasoline, wood, or natural gas. CO reduces incomplete combustion of fuels such as gasoline, wood, or natural gas. CO reduces the ability of the blood to carry oxygen through the body. It can be especially the ability of the blood to carry oxygen through the body. It can be especially dangerous to people with cardiovascular disease, pregnant women, and fetuses. dangerous to people with cardiovascular disease, pregnant women, and fetuses.

Nitrogen dioxide (NO2): Nitrogen dioxide results when fuels such as gasoline are not Nitrogen dioxide (NO2): Nitrogen dioxide results when fuels such as gasoline are not completely burned in air (air contains approximately 70 percent nitrogen). Nitrogen completely burned in air (air contains approximately 70 percent nitrogen). Nitrogen dioxide is a major smog-forming chemical. Nitrogen dioxide increases respiratory dioxide is a major smog-forming chemical. Nitrogen dioxide increases respiratory problems and triggers asthma. problems and triggers asthma.

Ozone (O3): Ozone can have either harmful or beneficial effects depending on where Ozone (O3): Ozone can have either harmful or beneficial effects depending on where you find it. Ozone in our upper atmosphere helps block the sun’s harmful ultraviolet you find it. Ozone in our upper atmosphere helps block the sun’s harmful ultraviolet radiation. Ground-level ozone is formed by the chemical reaction between oxides of radiation. Ground-level ozone is formed by the chemical reaction between oxides of nitrogen and volatile organic compounds in the presence of sunlight. It is a principle nitrogen and volatile organic compounds in the presence of sunlight. It is a principle component of smog and causes breathing problems, reduces lung function, triggers component of smog and causes breathing problems, reduces lung function, triggers asthma or emphysema, and can irritate the eyes and throat. asthma or emphysema, and can irritate the eyes and throat.

Criteria Pollutants (cont) Criteria Pollutants (cont) Sulfur dioxide (SO2): Sulfur dioxide’s main source is coal-burning Sulfur dioxide (SO2): Sulfur dioxide’s main source is coal-burning

power plants (sulfur is a component of some types of coal). Sulfur power plants (sulfur is a component of some types of coal). Sulfur dioxide is the main contributor to “acid rain”, which harms wildlife dioxide is the main contributor to “acid rain”, which harms wildlife and damages buildings and statues. It causes breathing problems and damages buildings and statues. It causes breathing problems and may cause permanent damage to lungs. and may cause permanent damage to lungs.

Particulate matter (PM-10): Particulate matter is made up of airborne Particulate matter (PM-10): Particulate matter is made up of airborne dust, smoke, soot and other microscopic pollutants. PM-10 is dust, smoke, soot and other microscopic pollutants. PM-10 is particulate matter with particles 10 microns in size (1 micron = particulate matter with particles 10 microns in size (1 micron = 1/1000 of a millimeter) and smaller. Main sources of PM-10 include 1/1000 of a millimeter) and smaller. Main sources of PM-10 include wood burning, road dust, combustion engines, agriculture, and wood burning, road dust, combustion engines, agriculture, and construction dust. Health effects include lung damage, bronchitis, construction dust. Health effects include lung damage, bronchitis, nose and throat irritation, and possibly long-term risk of cancer. nose and throat irritation, and possibly long-term risk of cancer.

Lead (Pb): Lead is a heavy metal found in paint, leaded gasoline Lead (Pb): Lead is a heavy metal found in paint, leaded gasoline (being phased out) and emissions from metal smelters and industrial (being phased out) and emissions from metal smelters and industrial processes. It causes brain and nervous system damage, learning processes. It causes brain and nervous system damage, learning problems, peripheral nerve paralysis, and impairs production of problems, peripheral nerve paralysis, and impairs production of hemoglobin in blood. Children are at an especially high risk. hemoglobin in blood. Children are at an especially high risk.

EPA StandardsEPA Standards► EPA sets the NAAQS, but the task of how to achieve these EPA sets the NAAQS, but the task of how to achieve these

standards is delegated to the individual states. The CAA standards is delegated to the individual states. The CAA requires states to prepare and update a state requires states to prepare and update a state implementation plan (SIP) that ensures that each region implementation plan (SIP) that ensures that each region within the state will come into compliance with the NAAQS. within the state will come into compliance with the NAAQS.

A state is free, within bounds established by EPA, to develop its A state is free, within bounds established by EPA, to develop its own SIP and choose its own regulatory requirements in order to own SIP and choose its own regulatory requirements in order to attain the national standards. EPA reviews each SIP and either attain the national standards. EPA reviews each SIP and either approves or disapproves the SIP. Should a state fail to prepare a approves or disapproves the SIP. Should a state fail to prepare a sufficient SIP, EPA must prepare one for it. sufficient SIP, EPA must prepare one for it.

There are restrictions on federal highway funds if a state fails to There are restrictions on federal highway funds if a state fails to submit an adequate SIP.submit an adequate SIP.

► A geographic area that meets the primary standard for a criteria A geographic area that meets the primary standard for a criteria pollutant is called an attainment area," while an area that exceeds pollutant is called an attainment area," while an area that exceeds the primary standard is called a non-attainment area the primary standard is called a non-attainment area

NonattainmentNonattainment► The 1990 Clean Air Act Amendments group nonattainment The 1990 Clean Air Act Amendments group nonattainment

areas into classifications based on the extent to which the areas into classifications based on the extent to which the NAAQS is exceeded, and establish specific pollution controls NAAQS is exceeded, and establish specific pollution controls and attainment dates for each classification.and attainment dates for each classification.

► Nonattainment areas were designated as “marginal,” Nonattainment areas were designated as “marginal,” “moderate,” “serious,” “severe,” or “extreme.”“moderate,” “serious,” “severe,” or “extreme.”

► Prevention of Significant Deterioration (PSD)Prevention of Significant Deterioration (PSD) If a major new source is proposed or a major source makes a If a major new source is proposed or a major source makes a

major modification in an attainment area, the PSD rules applymajor modification in an attainment area, the PSD rules apply

► PSD rules are triggered whenever a major new source is to be PSD rules are triggered whenever a major new source is to be constructed or whenever there is a major modification to an constructed or whenever there is a major modification to an existing major sourceexisting major source

Acid RainAcid Rain► The main source of acid rain is coal-burning power plants. The main source of acid rain is coal-burning power plants.

Long-range transport sulfur dioxide and nitrogen oxide emissions results Long-range transport sulfur dioxide and nitrogen oxide emissions results in acid rain and fallout of acidic particulate matter, which enters surface in acid rain and fallout of acidic particulate matter, which enters surface waters directly or through runoff. waters directly or through runoff.

► The Acid Rain Program is a phased approach to cut sulfur dioxide The Acid Rain Program is a phased approach to cut sulfur dioxide emissions in half and substantially reduce nitrogen oxide emissions emissions in half and substantially reduce nitrogen oxide emissions from electric utility plants. from electric utility plants.

To achieve these reductions, the program establishes an innovative To achieve these reductions, the program establishes an innovative market-based system. Affected utility units are allocated allowances based market-based system. Affected utility units are allocated allowances based on historical fuel consumption and specified emission rates. on historical fuel consumption and specified emission rates.

Each allowance allows a utility to emit one ton of sulfur dioxide, which may Each allowance allows a utility to emit one ton of sulfur dioxide, which may be traded, bought and sold. be traded, bought and sold.

► For example, if a plant expects to release more sulfur dioxide than it has For example, if a plant expects to release more sulfur dioxide than it has allowances, it could either get more allowances by buying them from another allowances, it could either get more allowances by buying them from another power plant, or the plant could reduce its sulfur dioxide emissions.power plant, or the plant could reduce its sulfur dioxide emissions.

Toxic PollutantsToxic Pollutants

► Section 112 of the Act establishes programs Section 112 of the Act establishes programs for protecting the public health and for protecting the public health and environment from exposure to toxic air environment from exposure to toxic air pollutants. pollutants.

EPA is to establish technology-based emission EPA is to establish technology-based emission standards, called Maximum Achievable Control standards, called Maximum Achievable Control Technology (MACT) standards, for sources of 188 Technology (MACT) standards, for sources of 188 pollutants listed in the legislation, and to specifypollutants listed in the legislation, and to specify

categories of sources subject to the emission categories of sources subject to the emission standards.standards.

Prevention of Significant Prevention of Significant Deterioration (PSD)Deterioration (PSD)

► Title V of the 1990 CAA amendments created a national Title V of the 1990 CAA amendments created a national permit system that consolidates all of the requirements of the permit system that consolidates all of the requirements of the CAA for a particular source. These permits, often referred to CAA for a particular source. These permits, often referred to as Title V permits or operating permits, include information as Title V permits or operating permits, include information such as the pollutants released, how much may be released, such as the pollutants released, how much may be released, and the abatement measures and monitoring methods by the and the abatement measures and monitoring methods by the operator to reduce the pollution. operator to reduce the pollution.

► An application for a PSD permit includes a demonstration that:An application for a PSD permit includes a demonstration that: The source will use the best available control technology (BACT)The source will use the best available control technology (BACT) the source will not interfere with the attainment or maintenance the source will not interfere with the attainment or maintenance

of NAAQSsof NAAQSs Operation of the source will not cause a significant deterioration Operation of the source will not cause a significant deterioration

of ambient air qualityof ambient air quality

New Source Performance New Source Performance ► New source performance standards (NSPS) ensure that the best pollution control New source performance standards (NSPS) ensure that the best pollution control

technology is used by new sources regardless of their locations. technology is used by new sources regardless of their locations.

► EPA issues NSPS, which are federal technology-based requirements for EPA issues NSPS, which are federal technology-based requirements for emissions from categories of new or modified stationary sources of air pollution. emissions from categories of new or modified stationary sources of air pollution. NSPS apply to any stationary source in an applicable source category NSPS apply to any stationary source in an applicable source category constructed after the proposal of NSPS regulations. constructed after the proposal of NSPS regulations.

► These standards also apply to any modification of such sources, which is defined These standards also apply to any modification of such sources, which is defined as any physical change in the source's method of operation that increases as any physical change in the source's method of operation that increases emissions or results in the emission of pollutant not previously emitted. NSPS emissions or results in the emission of pollutant not previously emitted. NSPS have been promulgated for generic categories of sources, like boilers and have been promulgated for generic categories of sources, like boilers and volatile liquid storage tanks, as well as industry-sector-specific processes.volatile liquid storage tanks, as well as industry-sector-specific processes.

► New source of air pollutants in nonattainment area must comply with the new source New source of air pollutants in nonattainment area must comply with the new source review requirementsreview requirements

► Information required in an application for a NSR permit includes:Information required in an application for a NSR permit includes: The source will use the best available control technology (BACT)The source will use the best available control technology (BACT) The source must prove that it meets the Lowest Achievable Emission Rate (LAER)The source must prove that it meets the Lowest Achievable Emission Rate (LAER) The source must show that it is already complying with existing regulatory standardsThe source must show that it is already complying with existing regulatory standards The source must comply with federal emission offset requirementsThe source must comply with federal emission offset requirements The source must show that the benefits of the project outweigh the environmental and social costsThe source must show that the benefits of the project outweigh the environmental and social costs

The Authority of the EPAThe Authority of the EPA

► Alaska Department Of Environmental Alaska Department Of Environmental Conservation v. Environmental Protection Conservation v. Environmental Protection Agency Et Al. (ADEC)Agency Et Al. (ADEC)

Authority of the EPA to enforce the provisions of Authority of the EPA to enforce the provisions of the PSD programthe PSD program

May EPA act to block construction of a new major May EPA act to block construction of a new major pollutant emitting facility permitted by ADEC pollutant emitting facility permitted by ADEC when EPA finds ADEC’s BACT determination is when EPA finds ADEC’s BACT determination is unreasonable in light of the guides §7479(3) unreasonable in light of the guides §7479(3) prescribes?prescribes?

The ADEC CaseThe ADEC Case540 US 461 (2004)540 US 461 (2004)

► PROCEDURAL POSTURE:PROCEDURAL POSTURE: Petitioner, a state environmental permitting agency, brought Petitioner, a state environmental permitting agency, brought an action challenging the orders of respondent Environmental Protection Agency (EPA) an action challenging the orders of respondent Environmental Protection Agency (EPA) prohibiting issuance of a Prevention of Significant Deterioration (PSD) permit and prohibiting issuance of a Prevention of Significant Deterioration (PSD) permit and prohibiting the permittee from constructing improvements. Upon the grant of a writ of prohibiting the permittee from constructing improvements. Upon the grant of a writ of certiorari, the agency appealed the judgment of the United States Court of Appeals for certiorari, the agency appealed the judgment of the United States Court of Appeals for the Ninth Circuit which upheld the EPA orders.the Ninth Circuit which upheld the EPA orders.

► OVERVIEW:OVERVIEW: The agency initially determined that a certain air pollution control measure The agency initially determined that a certain air pollution control measure was technically and economically feasible for a mine expansion, but the agency was technically and economically feasible for a mine expansion, but the agency subsequently accepted the mine operator's less effective alternative measure as the subsequently accepted the mine operator's less effective alternative measure as the best available control technology (BACT) in issuing the PSD permit to the operator. The best available control technology (BACT) in issuing the PSD permit to the operator. The EPA issued stop-orders on the ground that the agency's BACT determination was EPA issued stop-orders on the ground that the agency's BACT determination was unreasonable, but the agency contended that EPA authority under unreasonable, but the agency contended that EPA authority under 42 U.S.C.S. §§ 7413(a)(5)42 U.S.C.S. §§ 7413(a)(5), 7477 was limited to ensuring that the PSD permit contained a , 7477 was limited to ensuring that the PSD permit contained a BACT determination. BACT determination.

► HOLDING: HOLDING: The United States Supreme Court held, however, that the EPA had The United States Supreme Court held, however, that the EPA had supervisory authority over the reasonableness of the agency's BACT determination, and supervisory authority over the reasonableness of the agency's BACT determination, and the EPA properly determined that the agency's BACT determination lacked evidentiary the EPA properly determined that the agency's BACT determination lacked evidentiary support. The EPA option to seek judicial review of the agency's issuance of the permit did support. The EPA option to seek judicial review of the agency's issuance of the permit did not preempt the authority of the EPA to issue the stop-orders, and the inconsistency of not preempt the authority of the EPA to issue the stop-orders, and the inconsistency of the agency findings concerning the economic feasibility of the most effective control the agency findings concerning the economic feasibility of the most effective control measure furnished no tenable accounting for the agency's BACT determination.measure furnished no tenable accounting for the agency's BACT determination.

Citizen’s ActionCitizen’s Action► The Clean Air Act’s citizen suit provision, 42 U.S.C. § 7604, provides:The Clean Air Act’s citizen suit provision, 42 U.S.C. § 7604, provides:

a) Authority to bring civil action; jurisdictiona) Authority to bring civil action; jurisdiction Except as provided in subsection (b) of this section, any person may Except as provided in subsection (b) of this section, any person may

commence a civil action on his own behalf--commence a civil action on his own behalf--

► (1) (1) against any person (including (i) the United States, and (ii) any other against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or order issued by the Administrator or a State with respect to such a standard or limitation,limitation,

► (2) (2) against the Administrator where there is alleged a failure of the against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, ordiscretionary with the Administrator, or

► (3) (3) against any person who proposes to construct or constructs any new or against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating to significant deterioration of air quality) or subchapter I of this chapter (relating to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permitrepeated) or to be in violation of any condition of such permit

Notice RequirementNotice Requirement(b) Notice Requirement to Citizen Action law suit(b) Notice Requirement to Citizen Action law suit

No action may be commenced--No action may be commenced--► (1) (1) under subsection (a)(1) of this section--under subsection (a)(1) of this section--

(A) (A) prior to 60 days after the plaintiff has given notice of the violation (i) to the prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, orviolator of the standard, limitation, or order, or

(B) (B) if the Administrator or State has commenced and is diligently prosecuting a civil if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States standard, limitation, or order, but in any such action in a court of the United States any person may intervene as a matter of right.any person may intervene as a matter of right.

► (2) (2) under subsection (a)(2) of this section prior to 60 days after the plaintiff under subsection (a)(2) of this section prior to 60 days after the plaintiff has given notice of such action to the Administrator, except that such action has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action may be brought immediately after such notification in the case of an action under this section respecting a violation of section 7412(i)(3)(A) or (f)(4) of under this section respecting a violation of section 7412(i)(3)(A) or (f)(4) of this title or an order issued by the Administrator pursuant to section 7413(a) this title or an order issued by the Administrator pursuant to section 7413(a) of this title. Notice under this subsection shall be given in such manner as the of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.Administrator shall prescribe by regulation.

The ResultsThe Results► The Office of Management and Budget examined ten CAA regulations finalized in 2008, The Office of Management and Budget examined ten CAA regulations finalized in 2008,

2009, and 2010, and concluded that all ten had benefits that exceeded costs, by a ratio of 7 2009, and 2010, and concluded that all ten had benefits that exceeded costs, by a ratio of 7 to 1 on average.to 1 on average.

► The EPA determined that as of 1990 - The EPA determined that as of 1990 -

► Prevented an estimated 18 million child respiratory illnesses per yearPrevented an estimated 18 million child respiratory illnesses per year Prevented 850,000 asthma attacks per yearPrevented 850,000 asthma attacks per year Prevented 674,000 cases of chronic bronchitis per yearPrevented 674,000 cases of chronic bronchitis per year Prevented 205,000 premature deaths per yearPrevented 205,000 premature deaths per year The monetized value of saving Americans from these harms is projected to reach over The monetized value of saving Americans from these harms is projected to reach over

$2 trillion in 2020 alone. From 1990 through 2020, the CAA’s benefits are estimated to $2 trillion in 2020 alone. From 1990 through 2020, the CAA’s benefits are estimated to deliver $12 trillion in net benefits.deliver $12 trillion in net benefits.

► Trade Benefits of the CAATrade Benefits of the CAA

““The U.S. is regarded as a world leader in many environmental technology categories The U.S. is regarded as a world leader in many environmental technology categories including: engineering, design, construction, consulting services;…stationary and including: engineering, design, construction, consulting services;…stationary and mobile air pollution monitoring and control equipment;…and information mobile air pollution monitoring and control equipment;…and information systems/software for environmental management analysis.” systems/software for environmental management analysis.”

Environmental technology exports have grown dramatically from less than $10 billion in Environmental technology exports have grown dramatically from less than $10 billion in 1990 to about $44 billion in 2008, and the U.S. share of foreign environmental 1990 to about $44 billion in 2008, and the U.S. share of foreign environmental technology markets has been increasing (Department of Commerce International Trade technology markets has been increasing (Department of Commerce International Trade Administration). In 2008, the U.S. had a net trade surplus of $11 billion in Administration). In 2008, the U.S. had a net trade surplus of $11 billion in environmental technologies, helping the U.S. balance of trade.environmental technologies, helping the U.S. balance of trade.

The Opposition to the CAAThe Opposition to the CAA► Since its passage in 1970, opponents of the CAA continually Since its passage in 1970, opponents of the CAA continually

claim that federal efforts to fight air pollution leads to economic claim that federal efforts to fight air pollution leads to economic ruin. ruin.

► In January 2011, Senator John Barrasso, Republican of Wyoming, In January 2011, Senator John Barrasso, Republican of Wyoming, introduced legislation to block the Environmental Protection introduced legislation to block the Environmental Protection Agency from taking any action to regulate greenhouse gases to Agency from taking any action to regulate greenhouse gases to address climate changeaddress climate change The Barrasso bill would overturn the agency’s 2009 finding that The Barrasso bill would overturn the agency’s 2009 finding that

carbon dioxide and other greenhouse gases are harmful to public carbon dioxide and other greenhouse gases are harmful to public health and the environment. It would pre-empt any action by the health and the environment. It would pre-empt any action by the E.P.A. to limit greenhouse gas emissions without specific E.P.A. to limit greenhouse gas emissions without specific Congressional authorization.Congressional authorization.

► In February 2011, Sen. James M. Inhofe, R-Okla., submitted a In February 2011, Sen. James M. Inhofe, R-Okla., submitted a draft version of a bill that would render null and void the EPA's draft version of a bill that would render null and void the EPA's scientific findings that greenhouse gases pose a threat to human scientific findings that greenhouse gases pose a threat to human health and would prohibit the agency from taking any action to health and would prohibit the agency from taking any action to curb the climate problem. curb the climate problem.