Last week, air pollution litigation was a prominent theme at the office of the New York State Attorney General, which announced major developments in two separate matters.
On July 20, 2010, Attorney General Andrew Cuomo announced that his office, as well as the Pennsylvania Department of Environmental Protection (“PADEP”), had issued a notice of intent to sue the Homer City Station power plant in western Pennsylvania over Clean Air Act (“CAA”) violations that affect air quality in New York. The Homer City Station plant is a 1,884 megawatt electric power plant located 50 miles west of Pittsburgh. According to a Cuomo press release, the plant emits “over 100,000 tons of sulfur dioxide (SO2), nitrogen oxides (NOx), and particulate matter (PM) each year,” and “the plant’s annual emissions of over 100,000 tons of SO2 alone constitut[e] one of the largest upwind sources of this kind of pollution to New York state.” New York and PADEP allege that the plant, in violation of the CAA, failed to upgrade its pollution control technology when the facility underwent modifications in the 1980s and 1990s which increased its emissions. The lawsuit would seek the facility’s full compliance with the Clean Air Act, which would include the adoption of new pollution control technology.
On July 22, 2010, Cuomo announced that New York, joined by 12 other states, had filed a motion to intervene in a consolidated case challenging EPA’s recent greenhouse gas “Tailoring Rule.” The Tailoring Rule makes regulation of carbon dioxide (CO2) emissions practicable by setting the threshold for the applicability of the CAA’s Title V and prevention of significant deterioration (“PSD”) permit requirements at 100,000 tons per year (“tpy”) for new sources and 75,000 tpy for modified sources.
The existing statutory threshold, at 100 tpy for certain listed sources, or 250 tpy for other sources, was designed for pollutants present in much lower ambient concentrations than CO2.[1] EPA had determined that, with its recent classification of CO2 as a regulated pollutant (due to the new EPA/NHTSA automobile emissions standards), the old threshold would give rise to a 140-fold increase in PSD permits[2], a significant burden both for the newly regulated sources as well as for EPA.
Since the publication of the Tailoring Rule in the Federal Register on June 3, 2010, at least five separate challenges to the rule have been brought in the D.C. Circuit, where they have been consolidated. On June 23, the D.C. Circuit set an initial briefing schedule for these cases, with all dispositive motions currently due by September 13, 2010. New York State, which supports the Tailoring Rule, has been joined in the motion to intervene by California, Illinois, Iowa, Maryland, Massachusetts, Maine, New Hampshire, New Mexico, North Carolina, Oregon, Pennsylvania, and Rhode Island.
Congress’s continued inability to pass comprehensive legislation governing greenhouse gas emissions shifts the focus on regulatory efforts by EPA and the states to address conventional pollutants as well as greenhouse gas emissions. The recent actions by New York and other states to enforce the Clean Air Act as it applies to coal fired power plants and to defend EPA’s greenhouse gas regulations represents an important, if fragmented, effort to fill the gap left by continued Congressional inaction.
[1] See CAA §§ 165 (limiting application of PSD to “major emitting facilities”), 169(1) (defining “major emitting facility” with reference to the 100/250 tpy threshold).
[2] 75 Fed. R. 31514, 31535 (June 3, 2010).
