Clearing the Air on the International Emissions

Posted on March 26, 2019 by David Flannery

In an earlier posting, I noted the initial efforts of USEPA in addressing the international transport of air pollutants and the role those pollutants have in impacting air quality in the U.S. In the intervening months, several developments related to USEPA policy on international transport have occurred that are worth noting here.

While international transport is specifically addressed in Section 179(B) of the Clean Air Act, much of USEPA’s recent action has arisen in the context of the development of state implementation plans under Section 110(a)(2)(D) of the Clean Air Act. The D.C. Circuit has stated that “section 110(a)(2)(D)(i)(I) gives EPA no authority to force an upwind state to share the burden of reducing other upwind states’ emissions,” North Carolina, 531 F.3d at 921, thus raising the question about whether the Court would apply the same logic to emissions from another country.

On March 27, 2018, USEPA issued a guidance memorandum in which it set forth several flexibilities that states might consider as they developed their Good Neighbor implementation plans under Section 110(a)(2)(D)(i)(I). That memorandum (entitled “Information on the Interstate Transport State Implementation Plan Submissions for the 2015 Ozone National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)," prepared by Peter Tsirigotis, March 27, 2018, noted that a number of non-U.S. sources contribute to nonattainment in the U.S. and it invited comments on how to account for international transport in the development of state programs.

On April 12, 2018 the President issued a memorandum in which he stated that “CAA provisions addressing international emissions confirm that EPA should consider fully those emissions in evaluating the good neighbor obligations” and that “the data suggest that removing the contribution of international anthropogenic emissions would further support EPA’s determination that no additional action by upwind sources is required to reach attainment by 2023” with respect to the 2008 ozone NAAQS. See Presidential Memorandum for the Administrator of the Environmental Protection Agency (Apr. 12, 2018)

On August 31, 2018 USEPA issued a summary of comments submitted with respect to its March 27, 2018 memorandum in which it noted that states submitting comments urged USEPA to offer guidance on three issues of greatest interest to them. These included (1) identifying maintenance monitors, (2) determining thresholds for significant contribution, and (3) accounting for international emissions.  Since that time USEPA has issued guidance addressing significant contribution and maintenance monitors, but has not yet issued a comparable guidance addressing international transport.

On the Federal Register of December 8, 2018, USEPA did, however, publish a final rule addressing the implementation of the 2015 ozone national ambient air quality standard. In the press release that accompanied the issuance of that rule the following comments were offered:

This final rule grants states the flexibilities they need to incorporate factors that are often outside their control, such as international air pollution, so they can meet the 2015 ozone standards and continue our nation’s tremendous clean air progress,” said EPA Acting Administrator Andrew Wheeler. “By working with states to provide greater regulatory certainty, we are helping them improve air quality, protect public health, and enhance economic growth.

As we move further into the year we will look for additional guidance addressing further the application of international emission to the submittal of state plans under the “Good Neighbor” provisions of Section 110(a)(2)(D) of the Clean Air Act.