Since the Supreme Court’s 2007 decision in Massachusetts v. EPA, it has been clear that the U.S. Environmental Protection Agency (“EPA”) has the authority under the Clean Air Act (“CAA”) to regulate emissions of greenhouse gases (“GHGs”) from mobile sources because GHGs fall within the CAA’s definition of an “air pollutant.” When EPA sought to regulate GHG emissions from stationary sources (mainly power plants and factories), however, the Court sang a slightly different tune. In Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”), the Court rejected EPA’s attempt to regulate GHG emissions from stationary sources under two regulatory programs based solely on those emissions, while affirming the agency’s ability to regulate such emissions from so-called “anyway” sources that are already undergoing regulatory review because of emissions of other pollutants.
Tagged: Clean Air Act
On June 2, 2014, the Environmental Protection Agency (“EPA”) introduced new rules – via a 645 page proposal – designed to reduce the emission of carbon and other greenhouse gases (“GHGs”) from existing power plants. Although this is the first time the EPA has proposed such standards, the EPA claims that it is empowered to do so under the ambiguous provisions set forth in Section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. § 7411(d).
On April 29, 2014, in EPA, et al v. EME Homer City Generation, LP, the United States Supreme Court ruled in favor of the US Environmental Protection Agency (“EPA”) and its controversial “Transport Rule” which curbed nitrous oxide and sulfur dioxide emissions in 27 upwind states. The Supreme Court held it was appropriate to defer to EPA’s expertise in crafting a method of implementing the Clean Air Act’s (“CAA”) “Good Neighbor” provision to reduce pollution from upwind states onto their downwind neighbors.
The U.S. Environmental Protection Agency (EPA) on July 7 finalized a new rule aimed at reducing interstate air pollution across the eastern half of the country. The Cross-State Air Pollution Rule (CSAPR) requires reductions in power plant emissions in 27 states that cause or contribute to ozone and/or fine particulate pollution in other states.
Reversing the Second Circuit, the Supreme Court on June 20, 2011 held, in American Electric Power Company v. Connecticut, that the Clean Air Act, along with EPA regulatory action that it authorizes, displaces any federal common-law right to seek abatement of emissions of greenhouse gases (GHGs) from power plants. The Court’s decision means that for the foreseeable future, the debate over the proper scope of federal GHG regulation will take place in the executive and legislative branches and not the courts. It also leaves unanswered the question whether traditional state common-law remedies still have a role to play in GHG regulation.
If you are a NJ-based entity, do you have a power plant in the works? Are you thinking about a Combined Heat and Power (CHP) plant? If so, the New Jersey Economic Development Authority (NJEDA) has a grant for you if you act with alacrity. October 4, 2010, at 5:00 pm is the deadline for submitting an online solicitation for the competitive CHP grants. Grants are available for $450 per kW up to a maximum of $5 million per plant. All forms are available online.
Last year, the Appellate Division in TAC Associates v. NJDEP, 408 N.J. Super. 117 (App. Div. 2009) had held that an applicant under the NJ Brownfield Innocent Party Grant, N.J.S.A. 58:10B-5, need not be a landowner at the time of application for such Grant. In so ruling, the Appellate Division invalidated NJDEP regulations that imposed an ownership requirement, a requirement absent from the underlying statute.
On July 6, 2010, the USEPA proposed a new interstate transport of ozone and fine particulate rule for power plants. The goal of the rule is to achieve by 2014 a 72% reduction of sulfur dioxide (SO2) and a 54% reduction of oxides of nitrogen (NOx) from 2005 levels. The tri state area, like most of the states east of the Mississippi, is covered by this rule for both fine particulates and ozone. The sulfur and nitrogen oxides are fine particulates in the air.
A troika of decisions should send chills through the halls of many utilities and corporations. The first horse of the troika is the decision by the U.S. Supreme Court that says that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouses gases (GHG) under the Clean Air Act (CAA), 42 U.S.C. § 7401 et seq., and can be compelled to do so. The second horse is the decision by the Second Circuit granting states the power to abate GHG under the federal common law of public nuisance. The third horse is the decision by the Fifth Circuit that takes the final step and states that private citizens affected by global warming have the right to bring private nuisance suits.