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Bear in the Woods: Environmental Law Blog

Wednesday, September 03, 2014

PennFuture scores big victory for local governments and citizens rights

On Friday, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents by vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate an unconventional shale gas pad in the middle of a residential neighborhood in Fairfield Township. The case is believed to be the first decision testing the role of local government to regulate natural gas developments in the post-Robinson Township world. 

For the uninitiated, the Supreme Court in Robinson Township relied on Pennsylvania’s Environmental Rights Amendment to strike down portions of the state's Oil and Gas Law (Act 13), which compelled local government to allow gas operations across all zoning districts, including residential districts.  Otherwise, the state threatened to penalize local governments by withholding any "impact fees" intended to address harm caused to local communities by the industry. I know, nice guys.

In this case, Inflection applied for a conditional use permit for its proposed gas well pad.  A number of residents spoke out against the well pad before the Fairfield Township Board of Supervisors, testifying to concerns about air pollution, noise pollution, light pollution, traffic congestion, and the impact of the operations on their property values and general well-being. The company introduced the testimony of two witnesses, neither of whom were experts in land-use matters. Often, their testimony consisted of nothing but conclusions, such as that the operations were compatible with existing uses authorized for residential districts, without any explanation of how the witness reached those conclusions.

On appeal, PennFuture made three arguments: (1) that the language of the ordinance expressly authorized gas operations in the industrial zoned district, and it was therefore inappropriate to use a conditional use permit to allow it in the residential zoned district; (2) that the township's decision was not supported by substantial evidence on the record; and (3) that the township had violated the residents' substantive due process rights and failed to comply with its obligations under Article I, Section 27 by authorizing the gas well operation in the middle of a residential neighborhood.

The Township and Company argued that the citizens had waived their rights to raise their various challenges, that the Township properly used its conditional use process, that the Township's findings were supported by substantial evidence, and that no constitutional violations were committed.

Even though the Court "saw merit" in PennFuture's first argument, Judge Lovecchio rejected the idea that the ordinance expressly allowed gas operations only in industrial districts. Instead, the Court vacated the conditional use permit on the basis that the Township's findings were not supported by substantial evidence. The Court stated that the company failed to provide the Township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood."

Deciding the case on the basis of substantial evidence relieved the Court of the need to address PennFuture's constitutional arguments. Nonetheless, the Court made plain that the Township had an obligation to protect the constitutional rights guaranteed to its citizens under Article I, Section 27 of the Pennsylvania Constitution. The rights of citizens to a healthy environment, the Court said, "cannot be ignored and must be protected.” 

In so ruling, the Court adopted both the rationale and express language of the Supreme Court's decision in Robinson Township.

The case is Gorsline et al. v. the Board of Supervisors of Fairfield Township and Inflection Energy, LLC et al.  The full opinion can be found here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Working together to protect a community of life untrammeled by man

When we think about our future, sometimes it's helpful to take a look back at the past. As the New York Times reports, this week marks the 50th anniversary of two important federal environmental laws: The Wilderness Act and the law establishing the Land and Water Conservation Fund. Both of these statutes were passed with bi-partisan majorities at the dawning of the environmental era of American politics.

The Land and Water Conservation Fund was established to use federal funds obtained from offshore drilling to conserve natural areas, landmarks, and recreational opportunities. Although its funding often falls far short of the $900 million authorized by statute, the Land Water and Conservation Fund has invested over $16 billion in conservation measures over its 50-year lifespan. In Pennsylvania, that money has been used, among other things, to create the Flight 93 National Memorial in Shanksville and to protect the Hopewell Big Woods forest in southeastern Pennsylvania.

The Wilderness Act was enacted to protect natural areas that are undisturbed by humans. Under the Act, "wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." At the time it was signed, the Act protected about 9 million acres of wilderness from human development. Today, there are more than 106 million acres of land protected as wilderness. About 44 million of those protected acres are located within the National Park System; other wilderness areas are managed by the U.S. Forest Service, the U.S. Fish and Wildlife Service, or the Bureau of Land Management. Pennsylvania has two wilderness areas: The Allegheny Islands Wilderness on seven islands in the Allegheny River and the Hickory Creek Wilderness in Warren County. 

Thinking about the success of these early federal environmental programs may help us to recognize the respect and admiration for nature shared by nearly all people. Our common love for undisturbed natural areas is shared by people of all ages, ethnic groups, and political affiliations. In a time when we're all frustrated by partisan bickering, recognizing our shared values, and important gains that resulted from those shared values, may help us to better understand and appreciate other people -- and perhaps reveal the path to future progress.

Mike Helbing is a staff attorney in PennFuture's Philadelphia office.

Thursday, August 07, 2014

PA's Environmental Rights Amendment: A Note of Thanks

"Go to the source" is a cardinal rule for reporters, investigators, and researchers of all stripes. For lawyers, it sometimes involves the laborious process of digging up a law's "legislative history" — events occurring during the process of enacting the law that might inform the search for its meaning.

It is a pleasant surprise when someone else does that hard legwork and brings the sources to you.

Such room service recently was delivered by the Widener University School of Law's Environmental Law Center in the form of "A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania." Article 1, Section 27 is better known as the "Environmental Rights Amendment."

The Legislative History was compiled by Distinguished Professor of Law John C. Dernbach and Reference and Government Documents Librarian Edmund J. Sonnenberg. The two did the hard work of tracking down all of the primary source documents, from the first House Bill to the proclamation signed by Governor Shapp confirming that the amendment had become part of the Pennsylvania Constitution on May 18, 1971.

In between are excerpts from the House and Senate Legislative Journals tracking the progress of the amendment through two legislative sessions, the text of the ballot question presenting the amendment to the public for adoption, and the tallies of the popular vote on that question and four others appearing on the same ballot.

Perhaps of greatest interest, however, are Professor Robert Broughton's legal analysis of the proposed amendment, which was entered into the House Legislative Journal in 1970, and the set of questions and answers distributed to the public during the run-up to the 1971 public referendum by the primary sponsor of the amendment, then Representative (and later Senator) Franklin L. Kury.

Even if you have no special interest in constitutional or environmental law, the compilation offers a fascinating glimpse into a piece of Pennsylvania history, as well as a lesson in bi-partisanship.

As Dernbach and Sonnenberg note, interest in Article 1, Section 27 among attorneys and the public skyrocketed last year with Pennsylvania Supreme Court's decision in the Robinson Township case. In explaining the meaning and effect of the amendment, Chief Justice Castille's plurality opinion in Robinson Township relied on several of the documents found in the Widener compilation. As current and future cases explore the contours of the Environmental Rights Amendment, attorneys and judges alike will benefit from having these sources conveniently assembled in one place.

We are certain that we are not alone in saying thank you, Professor Dernbach and Mr. Sonnenberg.

But our greatest thanks go to the original source — Senator Kury. The "Legislative History of Article 1, Section 27" is a reminder of his remarkable efforts, without which there would be no Environmental Rights Amendment to discuss.

Another victory for local land use control

In what amounts to a victory for local land use control, administrative law judges (ALJ's) from the Pennsylvania Public Utility Commission (PUC) issued an initial decision that, if finalized, would deny petitions filed by Sunoco Pipeline, LP, seeking exemptions to local zoning ordinances for pump stations and valve control stations proposed in thirty-one locations across the state as part of Sunoco’s Mariner East pipeline. The stations help facilitate flow through the pipeline.

A municipality may apply its zoning ordinances to a public utility building unless the PUC determines that the building is reasonably necessary for the convenience or welfare of the public. Sunoco asked the PUC to find that the proposed facilities for its Mariner East pipeline fall into this category and are therefore exempt from local zoning ordinances.   

In considering the petitions, the first question the PUC must answer is whether the buildings in question are being used as part of a “public utility service.” Considering objections made by Clean Air Council, Delaware Riverkeeper Network, Concerned Citizens of West Goshen Township, and Mountain Watershed Association, the PUC’s ALJ's determined that Sunoco’s Mariner East pipeline is not a public utility service.

The ALJs reasoned in part that in proposing its project, Sunoco is acting not as a public utility making its products available to any members of the public who may require them, but instead as a common carrier serving its limited customer base. As a result, the administrative law judges determined that the buildings constructed as part of that project are not exempt from local zoning ordinances.

Assuming the initial decision is upheld, this case would stand as the second significant win for local land use control in the last year. Last December, a plurality of the Pennsylvania Supreme Court upheld municipalities’ right to regulate the location of drilling wells under the Environmental Rights Amendment to the Pennsylvania Constitution. As the Supreme Court affirmed in that case, the obligations placed on government by the Environmental Rights Amendment “bind all government, state or local, concurrently.” These decisions empower local governments to act in their citizens’ interest to protect the environmental resources entrusted to them under the Pennsylvania Constitution. 

PennFuture's law staff contributed to this post. 

Wednesday, July 23, 2014

Newest TRI data shows Clairton’s impact on surrounding community

The U.S. Environmental Protection Agency (EPA) just released its preliminary 2013 Toxics Release Inventory (TRI) data for industrial facilities across the United States. The data includes information on U.S. Steel’s Clairton Coke Works in Clairton, Pennsylvania, the country’s largest coke manufacturing plant. The Clairton facility has been in the news the past couple months for its inability to control “pushing emissions” at its new $500 million coke battery (Pittsburgh Post Gazette Article). The TRI data quantifies the toxic emissions coming from the Clairton plant, including toxic air emissions. Below are two tables showing a select number of Clairton’s air emissions. Table 1 shows Clairton’s total greenhouse gas emissions measured in CO2 equivalents, and Table 2 shows major toxic pollutants for 2013.

Table 1. Clairton’s Greenhouse Gas Emissions for 2013
Greenhouse Gas
Total Facility Emissions (CO2e)

There are generally two types of air emissions at the Clairton Plant -- fugitive emissions and stack emissions. Fugitive emissions refer to emissions that do not come from stacks, chimneys, vents, or other controlled openings, whereas stack emissions, as the name implies, come directly from facility stacks. Both types of emissions affect air quality, though fugitive emissions are generally more difficult to control.

Table 2. Clairton’s Major Air Pollutant Data for 2013
Chemical Name
Pounds Released
Fugitive emissions
Stack Emissions
Fugitive emissions
Stack Emissions
Cyanide Compounds
Fugitive emissions
Stack Emissions
Hydrogen Cynanide
Fugitive emissions
Stack Emissions
Hydrogen sulfide
Fugitive emissions
Stack Emissions
Fugitive emissions
Stack Emissions
Fugitive emissions

The TRI report also indicates Clairton’s compliance with the federal Clean Air Act. The report states that the plant is in violation of the state implementation plan, as well as National Emission Standards for Hazardous Air Pollutants governing coke batteries and by-product recovery.  The report’s compliance history section indicates a history of non-compliance and a significant violation of the Clean Air Act in May of 2013. One can see from the data that fugitive emissions account for a large amount of toxic air pollutants emitted by this facility.

While the TRI data is not the entire story, it provides an eye-opening look at the significant amounts of toxics emitted by a facility of this type and size. To access the entire toxic emissions data for Clairton, including water emissions, air emissions, compliance records, and waste transport, visit the EPA’s TRI Envirofacts site here (Clairton is the last facility on the list). Background information about TRI and common TRI terms can be found here

George Jugovic is chief counsel for PennFuture and is based in Pittsburgh.

Wednesday, July 16, 2014

Alphonse makes a play

In March, this blog described a “bureaucratic version of the Alphonse and Gaston routine” – “After you, Alphonse.” “No, you first, my dear Gaston.” – in which two units of Pennsylvania’s Department of Environmental Protection (DEP) were pointing to each other as the responsible regulator while failing to prevent polluting discharges of eroded sediment from a parcel of land in Fayette County known as the Curry site. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP’s Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP’s Mining Program.

As noted in the earlier post, baseball broadcasters describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

An update is required: Alphonse has stepped up and made a play!

PennFuture learned last week that on June 19, the W&W Program issued Compliance Orders to Appalachian Timber Company (available here) and Curry Lumber Company (available here) for failure to implement or maintain effective erosion and sediment control best management practices at the Curry parcel, in violation of DEP’s regulations.

The orders state that the cited violations have resulted in sediment pollution entering Morgan Run, a stream running along part of the western boundary of the Curry site that is entitled to special protection as a “High Quality Cold Water Fishery.” The remedial actions required by the orders include submitting a revised erosion and sediment control plan to the Fayette County Conservation District by June 27 and implementing specified best management practices by July 1.

Recent seeding operations and other activities at the Curry site suggest that W&W’s orders have had a beneficial impact, but the permanent stabilization of disturbed areas required by W&W’s compliance orders takes time, so there may be more tell about this part of the story.

There is another part of the story, however, that does not appear to be covered by W&W’s compliance orders. The biggest erosion and sedimentation problems observed at the Curry Site during the last several months have been outside the Morgan Run watershed. Citizens and the federal Office of Surface Mining Reclamation and Enforcement have documented problems on eastern portions of the Curry site that drain directly into the High Quality waters of the Youghiogheny River through several eastward-flowing unnamed tributaries. This photo, taken from the Great Allegheny Passage bike trail last November, shows a distinct, milky plume of sediment pollution carried into the Yough by one of those tributaries. Photos taken on New Year’s Eve show the muddy waters of one of the Curry site tributaries, which contributed to a similar plume of sediment pollution in the Yough. (All photos are used with the permission of the Youghiogheny Riverkeeper®.)

When performing follow-up inspections to assess the companies’ compliance with its June 19 orders, W&W should make sure that the conditions on the eastern side of the Curry site are not causing or contributing to sediment pollution in the Yough through the eastward-flowing tributaries.

Having called out W&W for inaction in March, we now give a shout out to W&W for the actions it has taken – a tip of the (Pirates) cap to you, Alphonse.

But our commendation comes with a qualification: The game is not over, and there are more plays to make. Keep stepping up and catching the ball, Alphonse!

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Wednesday, July 09, 2014

Lawsuit seeks to clean up stretch of Youghiogheny River

Two anglers fly fish around huge boulders at Ohiopyle State Park, Pennsylvania.Many residents of Pennsylvania, particularly southwestern Pennsylvania, are familiar with the beautiful Ohiopyle State Park, through which the Youghiogheny River flows. People flock to the area every year for superb white water rafting, fishing, camping, hiking and biking opportunities. Just upstream of Ohiopyle lies the Borough of Confluence, situated along the Great Allegheny Passage where Laurel Hill Creek and the Casselman River empty into the Yough. Between Confluence and Ohiopyle State Park runs one of the nicest eleven miles of trout river in all of Pennsylvania. It is at the beginning of this stretch where the Borough of Confluence discharges wastewater from its sewage treatment plant.

The Borough's sewage treatment plant is hydraulically overloaded. Two main sewer extensions that collect sewage from the town are constructed of old tile lines that allow large quantities of water from the Yough and Casselman Rivers to infiltrate into the collection system. This condition results in raw sewage bypassing treatment at the plant. The Pennsylvania Department of Environmental Protection (PADEP) estimates that the Borough's plant settles out only 30 percent of the solids that it should be collecting, meaning that the rest ends up in the river. Though this condition has existed for many years, neither the Authority nor the PADEP has taken action to solve the problem.

Ironically, the hydraulically overloaded treatment plant threatens the very natural resource that the Borough now seeks to use to attract economic development to the area. As suspended solids increase, a water body begins to lose its ability to support a diversity of aquatic life. Suspended solids absorb heat from sunlight, which increases water temperature and subsequently decreases levels of dissolved oxygen. Some cold water species, such as trout and stoneflies, are especially sensitive to changes in dissolved oxygen. Suspended solids can also destroy fish habitat because suspended solids settle to the bottom and can eventually blanket the river bed, smother the eggs of fish and aquatic insects, and suffocate newly-hatched insect larvae.

The Borough discharges sewage to the Yough under authority of a National Pollutant Discharge Elimination System (NPDES) Permit issued by the PADEP. A file reviewed performed by PennFuture revealed that for the past four and one-half years, the Borough has reported more than sixty (60) violations of its NPDES Permit, equating to over five hundred (500) days of violation of the Clean Water Act and Clean Streams Law. As a result, PennFuture filed a citizen suit in Federal District Court to cease the violations. The suit seeks to require that the Authority develop and implement a plan that will correct the hydraulic overload at the plant and eventually stop untreated sewage from being dumped into this valuable natural resource. 

You can read the full Complaint that PennFuture filed in the District Court for the Western District of Pennsylvania here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Wednesday, June 25, 2014

Lobsters making the case on warming oceans

Drastic declines in New England lobster larvae over the past year may be linked to rising ocean temperatures, not over-fishing, warns Dr. Rick Wahle of the School of Marine Science at the University of Maine.

Dr. Wahle and his crew of divers, who track lobster harvest data for the American Lobster Settlement Index, have seen a recent “widespread downturn” in the populations of larval lobsters. Although the adult population of lobsters is unchanged, Dr. Wahle’s research suggests that oceanographic changes are responsible for the sudden decline in lobster eggs.

Young lobster populations are approximately 50 percent of what they were in 2007. Recently, summer waters have been warmer than the lobster comfort zone (below 68° F), creating stress for lobsters. Complicating matters for lobster populations, warmer waters off the New England coast also aggravate a shell disease that eats away at lobster shells. The disease can be fatal to the crustaceans or make them unmarketable for selling live. As a result of the temperature changes affecting their habitat, lobster populations have been pushing north into areas that were once too cold for lobsters to thrive. 
Illustration of the water cycle and its interaction with the 
greenhouse effect.  The upper-left insert indicates the 
relative increase of potential water vapor content in the air 
with an increase of temperature (roughly 7% per degree).  
The white curls illustrate evaporation, which is compensated 
by precipitation to dose the water budget.  The red arrows 
illustrate the outgoing infrared radiation that is partly 
absorbed by water vapor and other gases, a process 
that is one component of the greenhouse effect. 
The stratospheric processes are not included in this figure.  
Reproduced with authorization from: Myhre, G., D. Shindell, 
F.-M. BrĂ©on, W. Collins, J. Fuglestvedt, J. Huang, D. Koch, 
J.-F. Lamarque, D. Lee, B. Mendoza, T. Nakajima, 
A. Robock, G. Stephens, T. Takemura and H. Zhang, 
[Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, 
J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 
Cambridge University Press, Cambridge, United 
Kingdom and New York, NY, USA. 

Over the past 50 years, the ocean has borne the brunt of climate change. Sea surface temperature changes are among the dangers associated with climate change. The average temperature of the global ocean has increased down to depths of at least 3,000 meters. See Intergovernmental Panel on  Climate Change (“IPCC”), Contribution of theWorking Group I to the Fourth Assessment Report of the IPCC, 408-21 (S. Solomanet l. eds. 2007).

In its most recent report, the IPCC estimated that oceans absorb approximately 90 percent of the heat added to the climate system, and the multinational experts report with high confidence that it is very likely that the increase in global ocean heat content observed has a substantial contribution from human activity. See IPCC, Climate Change 2013: The Physical Science Basis, Ch. 10.901-03 (Cambridge University Press 2013).  

Humans have an impact on water temperature in ways that extend beyond climate change as well.  When an industry uses water for processes such as cooling, the facility often discharges water that is hotter than the temperature of the receiving waters. When a power plant, for example, discharges heated water to a river, it can create a thermal plume or area of elevated temperature within that river. This human-caused change in the temperature of surface water is known as thermal industrial pollution. The combination of thermal industrial pollution with other forms of water pollution such as chemical or biological contamination can create severe stresses on aquatic ecosystems. See IPCC 2013, Ch. 10, at 869-928. In local areas, it can also intensify the effects of higher temperatures caused by climate change.

The EPA has the power to limit thermal industrial pollution because heat is defined under the Clean Water Act as a pollutant. 33 U.S.C. § 1362 (6).  Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant by any person unless otherwise permitted under the Act. 33 U.S.C. § 1311(a). 

In order to qualify to release these pollutants, a discharger must obtain a National Pollutant Discharge Elimination System (NPDES) permit approved by EPA or a qualified state agency.  33 U.S.C. § 1342. The NPDES permit contains limitations on the quantity or concentration of pollutants, including heat, which the facility can discharge into a natural water body. 33 U.S.C. § 1342. 

Courts have recognized the importance of the direct effects of thermal industrial pollution in reversing approval of a permit for construction of two nuclear power plants. Duke Power vs. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978), citing United States v. SCRAP, 412 U.S. 669, 686-87 (1973). (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the ‘injury in fact’ standard.”)  

In order to fully account for the harm to water bodies from the effects of higher temperatures, it is important to consider the effects of both climate change and thermal industrial pollution together. Fortunately, federal law requires EPA to do just that when it conducts environmental reviews as part of its NPDES permitting process for new sources. For industrial facilities considered “new sources” under the Clean Water Act, 33 U.S.C. § 1316(a)(2), EPA must conduct an environmental review under the National Environmental Policy Act (NEPA). 33 U.S.C. §1371(c)(a). NEPA requires the federal agencies to fully consider the environmental impact of actions it permits by considering, among other things, the “cumulative impacts” of all actions that could impact the environment. 40 C.F.R. Parts 1500-1508; see 42 U.S.C. § 4332.

In a draft guidance document published in 2010, the Council on Environmental Quality recognized the importance of incorporating the effects of climate change on the environment when conducting an environmental review under NEPA. Council on Environmental Quality, 2010. DraftNEPA Guidance on consideration of climate change and GHG emissions.  Unfortunately, the cumulative effect of the impact of climate change is not always fully analyzed in NEPA reviews. See Patrick Woolsey, Consideration of Climate Change in Federal EISs, 2009-2011, Centerfor Climate Change Law, Columbia Law School, July 2012, at 15-16. By incorporating a robust analysis of the effects of climate change into its NEPA analysis for NPDES permitting decisions, EPA can better ensure that thermal industrial pollution does not compound the effects of climate change and exacerbate the plight of lobsters and other plants and animals that rely on a stable environment. 

Leading British economist Lord Nicholas Stern warns that we “grossly underestimate” the economic damage wrought by climate change. Indeed, lobsters are not the only aquatic organism that is sensitive to water temperature. The trout species that call Pennsylvania’s streams and rivers home also suffer stress at higher water temperatures. And, in fact, warming waters are but one of many of the impacts of climate change that can adversely affect both our environment and our economy.

To minimize those negative effects, we must not only address the direct causes of climate change, but we must also minimize other activities having negative effects on ecosystems. Although it will not stop climate change, if EPA closely monitors offshore and coastline discharges of heated water or other pollutants throughout the East Coast, it may improve the likelihood of survival for temperature-sensitive species like the New England lobster and Pennsylvania’s trout species. 

The Supreme Court, with a hiccup, holds EPA can regulate GHGs from new and modified stationary sources

On Monday, the U.S. Supreme Court issued its much-anticipated decision in Utility Air Regulatory Group v. EPA (UARG). The case embodied another industry challenge to the Environmental Protection Agency's (EPA) attempt to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). It’s often a poor sign for the environment when Justice Antonin Scalia delivers the majority opinion for the Court. In this instance, however, the majority upheld EPA’s authority to regulate GHG emissions under the Clean Air Act. The case did not play out exactly as the federal government had planned, however.

UARG involved challenges to EPA’s attempt to regulate GHGs from major stationary sources of air pollutants (power plants, factories, etc.) after its decision to regulate GHGs from mobile sources was upheld. Justice Scalia joined with the conservative block to rule 5-4 that EPA lacked “standalone” authority under the Clean Air Act to regulate GHG emissions from stationary sources.  He then, however, went on to join with the more liberal block (along with Chief Justice John Roberts and Justice Anthony Kennedy) to affirm 7-2 that EPA could regulate GHG emissions from stationary sources, so long as those facilities otherwise required an air permit for emitting conventional air pollutants. This means that there are now seven justices on the Supreme Court who affirmed that the Clean Air Act covers GHG emission since its 2006 decision in Massachusetts v. EPA.

In the Beginning There Were Mobile Sources

Section 202(a)(1) of the Clean Air Act (CAA), 42 U.S.C. § 7521(a)(1), requires the Administrator of the Environmental Protection Agency to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." In 2003, the Bush Administration’s EPA denied a petition by twelve states (but not Pennsylvania) and several cities to regulate carbon dioxide and other GHGs from motor vehicles under the CAA. EPA took the position that it lacked the authority to regulate GHGs under the CAA, and even if it had the authority, regulation at that time was not consistent with President Bush’s policies to address climate change.

Total US Greenhouse Gas Emissions by Economic Sector
 in 2012 from EPA's Inventory of Greenhouse Gas Emissions
Petitioners brought suit to compel EPA to take action, and in April 2007, Justice John Paul Stevens led a 5-4 majority in Massachusetts v. EPA to reject EPA's argument that the CAA was not meant to cover carbon emissions. The Court said that the Act's definition of "air pollutant" was written with "sweeping," "capacious" language so that it would not become obsolete, and that the EPA could not delay its decision on the basis of prudential and policy concerns. Instead, EPA had to base any inaction on regulating carbon emissions upon a consideration of "whether greenhouse gas emissions contribute to climate change." In dissent, Justice Scalia argued that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change.

Though President Bush issued an Executive Order requiring EPA to use its authority under the CAA to regulate carbon emissions from mobile sources in May 2007, it would not be for another two and one half years (December 2009) before EPA issued its "Endangerment and Cause or Contribute Finding, " which found, as required by Massachusetts v. EPA, that motor vehicle emissions of six GHGs threatened the health and welfare of current and future generations, which set up for the first time the promulgation of federal regulations to control carbon emissions from mobile sources. This led to the establishment of greenhouse gas emission standards under Section 202 of the CAA (the so-called "Tailpipe Rule").

And Then There Were New and Modified Stationary Sources (The Tailoring Rule)

Large stationary sources challenged the Tailpipe Rule because of concern that regulation of GHG emissions from mobile sources would lead to exactly what happened here, that EPA would have to regulate GHG emissions from stationary sources. The CAA says that its permit requirements apply to stationary sources emitting "any air pollutant." The EPA, in 2010, took the position that once the agency found that GHGs were enough to warrant vehicle regulations, the Act's permitting requirements were automatically triggered. Industry argued that the cost of regulating GHGs from stationary sources was so large that the EPA should not have regulated tailpipe emissions. A unanimous D.C. Circuit Court of Appeals, in Coalition for Responsible Regulation v. EPA, rejected this argument, holding instead that the EPA lacked any discretion at all in setting tailpipe emissions once it found that that greenhouse gases endanger public health and welfare.

The D.C. Circuit Court’s ruling cleared the way for EPA to move forward with regulating major stationary sources of GHG emissions. The challenge for EPA, however, was that the CAA defines "Major" as any source that emits 100 tons per year of a regulated pollutant, which only captures large facilities when measuring criteria pollutants, but when measuring GHGs, the same standard would capture thousands of very small sources such as homes and businesses. To avoid this problem, EPA sought to interpret or "tailor" its GHG rule to only apply to sources emitting 100,000 tons per year of GHGs (and existing sources making modifications that would increase emissions by 75,000 tons per year). Industry challenged application of the CAA to stationary sources, and EPA”s attempt to "tailor" the language of the CAA.

Utility Air Regulatory Group v. EPA

In UARG, the Supreme Court reviewed whether EPA’s Endangerment Finding and regulation of GHGs under Section 202 of the CAA triggered regulation of GHGs under EPA’s Prevention of Significant Deterioration (PSD) and Title V permitting programs, and whether EPA properly excluded a great number of those sources from regulation under its Tailoring Rule. It should be noted that while industry tried to again challenge EPA’s Endangerment Finding and setting of GHG standards for motor vehicles, the Supreme Court limited its consideration to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”

The Court ruled that EPA could not interpret the CAA in a manner that applied its PSD Program to sources emitting solely GHGs, as that would be inconsistent with the CAA’s structure and design, which intended only to impose those burdens on large facilities. The Court also held that EPA improperly attempted to "tailor" the CAA’s unambiguous numerical definitions of "major" source. Nonetheless, the Court said that EPA reasonably interpreted the CAA as requiring sources that required a PSD permit to comply with Best Available Control Technology (BACT) respecting GHG emissions. The CAA requires the application of BACT "for each pollutant subject to regulation" under the Act.

The case is Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.

George Jugovic, Jr. is chief counsel for PennFuture. He is based in Pittsburgh.

Wednesday, June 04, 2014

Where does EPA’s 111(d) authority to regulate carbon emissions from existing power plants come from?

The news has been full of talk this week about the Environmental Protection Agency's (EPA) proposed public health standard to reduce carbon pollution from existing power plants by 30 percent from 2005 levels by 2030. We’ve blogged about it here and here and -- one more -- here. This is an encouraging development in the fight to limit damage from climate change, but where does EPA’s authority come from?

The short answer is that EPA’s authority comes from the Clean Air Act, which establishes a comprehensive federal regulatory regime for managing air pollution. The Clean Air Act was initially enacted in 1963 but has been amended several times since then. Among other things, the Act establishes a system for achieving national ambient air quality standards (NAAQS) for certain air pollutants, and addresses releases of substances designated hazardous air pollutants (HAPs). EPA credits the Clean Air Act with reducing emissions of NAAQS-related pollutants – particles, ground-level ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide – by an average of 72 percent since 1970 while the nation’s economy was more than doubling in size. In addition to domestic air pollution controls, the Clean Air Act has been used as a tool to address global problems, such as implementation of the Montreal Protocol, which has been successful at managing ozone-depleting substances to prevent further damage to the planet’s stratospheric ozone layer.  

To regulate carbon emissions from existing power plants, EPA is proposing to use its authority under Section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d). That section allows the agency to require each state to submit a plan for achieving performance standards for existing sources of air pollution – in this case, carbon dioxide from power plants. Under its proposed rule, EPA would require each state to submit a plan demonstrating that existing electric power plants would be able to meet a state-specific carbon reduction goal by 2030. If all states meet their goals by 2030, the country as a whole will reduce its carbon emissions by 30 percent from 2005 levels. EPA’s proposed rule allows states a considerable amount of flexibility in deciding how to achieve their targets. For example, states are allowed to achieve emission reductions in a number of ways – both by achieving efficiency within power plants themselves and by using “outside the fence line” techniques that will reduce demand for power from plants that burn fossil fuels. This flexibility will enable states to accomplish the goals EPA has set in a way that is good for both the environment and the economy.

Although EPA’s proposed rule already has generated controversy and, when finalized, may generate litigation, we hope and expect that by the year 2030, the significant reduction in carbon emissions required by yesterday’s proposed rulemaking will be added to the list of accomplishments enabled by the Clean Air Act.

Mike Helbing is staff attorney for PennFuture and is based in Philadelphia.