Posted on November 18, 2020 by David Flannery
As I review USEPA’s current proposal to address the Good Neighbor provisions of the Clean Air Act (CAA) with respect to the interstate transport of ozone-related air pollutants (85 Fed. Reg. 68964; October 30, 2020), I keep recalling the phrase – “If at first you don’t succeed, try, try again.”
USEPA has been addressing the Good Neighbor provision of the CAA over the last 20 years through a number of rulemakings. For a complete history of these various rulemakings see: https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport. These rulemakings have included the NOx SIP Call (which addressed the 1979 ozone National Ambient Air Quality Standard (NAAQS)), the Clean Air Interstate Rule (CAIR) (which addressed the 1997 ozone NAAQS), and the Cross-State Air Pollution Rule (CSAPR) (which established the Group 1 Trading Program to address the 1997 ozone NAAQS).
USEPA’s more recent efforts to address the Good Neighbor requirements with respect to the 2008 ozone NAAQS, however, have taken on an added level of complexity with now two failed rulemakings.
The first of these failures involved the CSAPR Update Rule promulgated in 2016. In that rule, USEPA sought to impose short-term emission controls that could be implemented by the start of the 2017 ozone season. The result was the creation of a Group 2 Trading Program to impose a set of emission reductions on electricity generating units in 22 states based upon the optimization of controls that were already installed. On September 13, 2019, the D.C. Circuit remanded the CSAPR Update Rule to USEPA finding that it was a partial rule that did not eliminate all upwind significant contribution to downwind nonattainment or maintenance areas in the attainment year of 2021. Wisconsin v. EPA, 938 F.3d 303 (D.C. Cir. 2019).
The second attempt involved the CSAPR “Close Out” Rule promulgated in 2018 in which USEPA found that no additional emissions reductions from upwind states were any longer necessary because USEPA air quality projections for 2023 showed that there were no remining nonattainment or maintenance areas by that date. A mere 18 days after it had remanded the CSAPR Update Rule, the D.C. Circuit vacated the CSAPR Close Out Rule by reaffirming that the attainment date that should have been used by EPA for its analysis was 2021 – not 2023. New York v. EPA, 781 Fed App’x 4 (D.C. Cir. 2019)
As a result of the remand in the Wisconsin case, USEPA has now proposed the Revised CSAPR Update rule as the third attempt to specify the obligations of upwind states to avoid significantly contributing to downwind air quality nonattainment or interfering with air quality maintenance of the 2008 ozone NAAQS. In an effort to determine a complete remedy in response to the Wisconsin remand, EPA has examined air quality and emission control data in 2021 and has proposed a Group 3 Trading program to impose a new round of emission reductions from electric generating units in 12 states while inviting comments on the possibility of imposing emissions reductions on other source categories. The comment period on this proposal will close on December 14, 2020.
All of which causes me to recall yet another phrase, as I wonder whether “the third time will be the charm.”