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Environmental Law > Interstate Air Pollution > Flashcards

Interstate Air Pollution Flashcards

1
Q

Interstate Air Pollution

A
  • one of the og justifications for the CAA but not really until last couple of decades that it kicks in
  • very challenging - tough to figure out what state is doing what and how much
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2
Q

Tall Stack Phenomenon

A
  • designed to meet in-state NAAQSs cheaply (by sending to other states)
  • super tall stacks, + figured out intermittent controls so would only run the power plant when wind blows in a certain direction
  • Congress responds w/ 1977 amendments - you can have the stacks, but you don’t get credit for them in efforts to reduce air pollution (no credit for intermittent controls or stacks over a certain height)
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3
Q

Section 110(a)(2)(D)

A
  • Clean Air Act Amendments 1990
  • says that SIPs need to “contain adequate provisions prohibiting “any source” “from emitting any air pollutant in amounts” which will “contribute significantly” to nonattainment in another state
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4
Q

Section 126(b)

A
  • deals with Interstate Pollution Abatement
  • allows states to petition if they think another state is messing with their attainment or maintenance of NAAQSs
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5
Q

Tradeable Emissions - Cap/Trade

A
  • multiple states with downwind effects may mean fungibility -> cap and trade system might be effective

Opportunities:
- bring existing sources into regulatory fold
- create market to take advantage of lowest cost reductions
- address bottom line amount
- promote economic efficiency

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6
Q

Cap and Trade - General Concept/Advantages

A
  • FUNGIBILITY KEY
  • cost-effective - may cost more for some facilities to reduce their emissions, and cap and trade can allow you to achieve the same level of reduction at a lower cost (those for whom it’s more expensive will buy reductions from others)
  • better to let the market figure it out than try to set out definitively which is most cost-effective
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7
Q

Challenges of Cap and Trade

A
  • determine overall amount emitted
  • determine overall reduction required
  • address nonfungibility issues
  • allocation: auction vs give away
  • monitor
  • possibility of weird incentives (companies may pollute max amount possible)
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8
Q

Section 176A

A
  • Interstate Transport Commissions
  • EPA can establish a “transport region” if it determines interstate transport of air pollutants from one or more states in the region contributes significantly to violation of NAAQS in one or more other states
  • can establish Transport Commissions for those regions -> the commissions can recommend measures and request a SIP call (request that EPA issue a finding that a state’s SIP is substantially inadequate)
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9
Q

Major EPA Interstate Pollution Initiatives

A
  • Acid Deposition CAA Title IV (Bush I)
  • NOx SIP Call (1998, Clinton)
  • Clean Air Interstate Rule (2005, Bush II)
  • Cross State Air Pollution Rule (2011) (Obama) (“Transport Rule”)
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10
Q

Acid Deposition

A
  • Midwest to Northeast -> the 111 “Big Dirties” causing major harm to forests + paint on buildings in NE (lots of ecosystem + property damage)
  • Bush defeated logjam in 1990 CAA amendments -> creates Acid Deposition program (found a way to reduce acid in a way midwestern industries found pallatable)
  • TITLE IV DEALS WITH ACID DEPOSITION CONTROL
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11
Q

Acid Deposition - Nationwide Cap

A
  • plan to reduce SO2 by 10M tons per yr below 1980
  • reduce NOx by 2M tons per yr below 1980
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12
Q

Acid Deposition - Phase 1

A

1990-2000
- designed to achieve half of all emissions reductions sought
- applies to largest coal-fired power plants (>100MWe)
- allocation of pollution allowance to plants based on SO2 emission rates of 2.5 lbs SO2 per million BTU produced
- plants can buy and sell allowances (although allowances explicitly not a property right)
- bonus allowances for certain technologies and locations

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13
Q

Acid Deposition - Phase II

A

Begins in 2000
- adds additional industrial sources (>75 MWe)
- allowance formula reduces from 2.5 lbs SO2 per million BTU to 1.2 lbs SO2 per million BTU
- bonus allowance provisions for “clean coal technology,” to ease transition in 10 Midwestern States and reward cleaner states

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14
Q

Successes of Acid Rain Program

A
  • cost of compliance dropped dramatically (cost of scrubbers down, encouraged energy conservation as well as fuel shift to low sulfur coal)
  • smaller plants opted into Phase 1 (trying to take advantage of market)
  • 2005 - Cost benefit ratio found to be favorable - estimated 40:1 bens to costs (bens $122B annual)
  • achieved 40% plus reduction since 1990 by 2006
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15
Q

Ozone Pollution

A
  • secondary pollutant
  • created by other emissions in the atmosphere that combine
  • no company actually emits ozone, they just emit volatile organic compounds and NOx that react when there’s heat to produce ozone
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16
Q

NOx SIP Call

A
  • Oct 1998
  • singles out 23 states (including DC) as significant contributors to downwind nonattainment of ozone (based on magnitude, frequency and relative amount)
  • invokes on 110(k)(5)
  • each state needs to reduce its contribution only by the amount achievable with “highly cost-effective controls” (less than $2K/ton)
17
Q

NOx SIP Call - State Options

A
  • based on the “highly effective controls”, EPA puts a cap on each state’s emissions

State has three choices for how to meet this cap:
- can revise the SIP to set a cap on the state and tell sources what to do
- can do initial in-state allocation then let sources trade
-can op into FIP (creates national cap and trade program for the 23 states)

18
Q

Michigan v. EPA - DC Cir. 2000

A
  • response to the NOx SIP Call - petitioners are upset because EPA considered costs rather than trying to determine how much each state was contributing
  • DC Circuit says it IS permissible for EPA to consider costs
  • Sentelle dissents - says need to figure out based on actual amounts of pollution, not $
19
Q

NOx SIP Call Result

A
  • basically, huge success
  • 100% compliance by 2,500 covered units
  • by 2006, power plant NOx reductions were 60% lower than in 2000
  • by 2006, 80% of 104 areas nonattainment for ozone in 2004 had reached attainment
20
Q

Clean Skies Proposed Bill

A
  • proposed by Bush admin
  • trying to cut SO2, NOx, and mercury from power plants
  • Congress doesn’t passed this -> Bush admin turns to regulations
21
Q

Clean Air Interstate Rule (CAIR)

A
  • 2005
  • designed to achieve the lowered (1997) NAAQSs for ozone and PM2.5 by lowering SO2 and NOx emissions (these are precursors to the other two)
  • directed at 28 states in Midwestern and Eastern US
  • imposed budgets and caps on fossil fuel-fired power plants
  • apportioned emissions based on what could be controlled by “cost-effective” controls (no guarantee states keep within own caps)
22
Q

North Carolina v. EPA

A
  • 2005
  • CAIR gets struck down by DC Cir - distinguished from NOx + said can’t do the cost-effective idea
  • BUT court agreed not to vacate because really only NC wanted to strike the rule down -> wound up staying in place for yrs
23
Q

Cross-State Air Pollution Rule (CSAPR)

A
  • 2011
  • Obama EPA
  • HUGE problem of nonattainment ozone + particulate matter, plus all agreed best way to address was cap and trade (spaghetti matrix - impossible to figure out what’s specifically going where, doesn’t precisely fit the lingo but doing the best it can)
  • core element: 1% threshold, THEN emissions reductions
  • significant contribution threshold - state subject to CSAPR if its contribution exceeds 1% of relevant NAAQSs
24
Q

CSAPR Reduction Requirements

A
  • EPA uses a computer model to figure out how much overall reduction is necessary to achieve attainment or sufficiently curb downwind nonattainment
  • then figures out cost-effective controls that will reach necessary overall reduction
  • annual state budgets determined by applying applicable cost per ton to all existing sources in each state
25
Q

CSAPR FIP

A
  • imposed simultaneously (states can’t avoid, prior EPA determination SIP inadequate)
  • assigns allocations to power plants and requires compliance
  • creates interstate trading program to allow cost-effective trading
  • states can’t avoid the FIP in the first instance, but CAN submit SIPs in future to replace the FIP
26
Q

EME Homer City Generation v. EPA

A
  • 2012
  • DC Circuit strikes down CSAPR
  • says not okay that a state could be required to reduce its emissions by an amount greater than the “significant contribution” - focused on idea that states are only responsible for whatever amounts “contribute significantly”
27
Q

EPA v. EME Homer City - Questions Presented for SCOTUS

A
  • whether court of appeals lacked jurisdiction to consider challenges on which it granted relief
  • whether states are excused from adopting SIPs prohibiting emissions that “contribute significantly” to air pollution problems in other states until after EPA has adopted a rule quantifying each state’s interstate pollution obligations (did EPA err in not giving chance to come up with SIPs)
  • whether EPA permissibly interpreted the statutory term “contribute significantly” so as to define upwind states’ “significant” contributions in light of cost-effective emission reductions they can make to improve air quality
28
Q

EPA v. EME Homer City - EPA Oral Argument

A
  • says EPA accepts premise that each state should decrease by fair share, but there are multiple ways to figure that out + cost-effectiveness is just one way (ex of dunking - less effort required for someone who’s taller)
  • significant contributions to a bad result (layups vs. missed three-pointers)
29
Q

EPA v. EME Homer City - Whether EPA needs to provide reasonable time to develop SIP

A
  • not required by statute - states submit the SIPs, once EPA finds inadequate, it has statutory duty to issue FIP at any time within two yrs
  • DC Circuit had tried to say you had to give states “reasonable” period of time to propose SIPs implementing their allocated budget -> SCOTUS says this just isn’t in the statute
30
Q

EPA v. EME Homer City - Cost-Effectiveness Decision

A
  • SCOTUS upholds on Chevron II (gap to be filled by Chevron deference)
  • says EPA is just answering the question of how to efficiently and equitably allocate responsibility for downwind state’s nonattainment among multiple contributing upwind states
  • caveat: if a state wants to show being overpenalized/controlled as applied, SCOTUS will review and reduce (upholds facially, but leaves room for as applied challenge)
31
Q

EPA v. EME Homer City - Scalia Dissent

A
  • claims EPA trying to smuggle in costs “again” and cites Whitman .v. American Trucking - he’s actually wrong on this though cause in that case EPA was saying it could NOT consider costs

Environmental Law (17 decks)

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