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In Chapter 3
p. 348: End of Note 1: The Politics and Economics of the Northern Spotted Owl Listing:
The Northern Spotted Owl also become embroiled in the allegations that former Deputy Assistant Secretary of the Interior Julie MacDonald interfered with the scientific and agency evaluations of species in 13 Endangered Species Act cases. Specifically, a lawsuit in the U.S. District Court for the District of Columbia (Carpenters Indistrial Council v. Salazar) alleged that Ms. MacDonald improperly interfered with the revisions of the spotted owl's recovery plan and critical habitat designation. On March 31, 2009, the U.S. Department of Justice and Interior Department asked the federal court to remand the recovery plan and critical habitat designation to the U.S. Fish & Wildlife Service for reconsideration.
p. 376: Before Sub-Section b:
The U.S. Fish & Wildlife Service and NMFS established most of the Section 7 consultation process through regulations. See 51 Fed. Reg. 19,926 (June 3, 1986). As a result, details of the consultation process can be altered by these agencies. A political battle ensued in December 2008, when the agencies, in the last days of President George W. Bush's Administration proposed new consultation regulations, to take effect on January 15, 2009 -- i.e., right before President Obama took office. These new regulations, according to the Obama Administration, served three primary purposes: (1) they redefined several of the key terms for the consultation process; (2) they narrowed the circumstances under which federal agencies had to engage in Section 7 consultation; and (3) they established timeframes for informal consultation.
On May 4, 2009, the Obama Administration withdrew the new consultation regulations, reinstating, with some minor amendments, the 1986 regulations. 74 Fed. Reg. 20,421 (May 4, 2009).
p. 386: New Note 7: The Discretionary Action Regulation: The ESA regulations currently state: "Section 7 and the requirements of this part [50 C.F.R. Part 402] apply to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. 402.03.
p. 402: New Note 6: Climate Change and Other Aspects of the Endangered Species Act: Climate change impacts now routinely affect the ESA listing process, as well. In the first six months of 2009, for example, climate change played a role -- sometimes significant -- in the agencies' determinations that: (1) the black abalone should be listed as an endangered species, 74 Fed. Reg. 1937, 1939, 1941 (Jan. 14, 2009); (2) a petition to list the Wyoming pocket gopher was warranted, 74 Fed. Reg. 6558, 6562-63 (Feb. 10, 2009); (3) the Pacific eulachon should be proposed as a threatened species, 74 Fed. Reg. 10,857, 10,869, 10,870-74 (March 13, 2009); (4) a petition to list the Tehachapi slender salamander was warranted, 74 Fed. Reg. 18,336, 18,340-41 (April 22, 2009); and (5) a petition to list the American pika was warranted, 74 Fed. Reg. 21,301, 21,304-09 (May 7, 2009). Climate change impacts have also been argued less successfully in several other listing processes. See 74 Fed. Reg. 27,226, 27,270 (June 9, 2009) (Narrowleaf evening primrose); 74 Fed. Reg. 23,376, 23,381-84 (May 19, 2009) (Coaster brook trout); 74 Fed. Reg. 12,932, 12,939, 12,944-47, 12,960-62 (March 25, 2009) (Yellow-billed loon); 73 Fed. Reg. 79,822, 79,824-27 (Dec. 30, 2008) (Ribbon seal).
Climate change is also playing a role in critical habitat decisions. It has been relevant, for example, for the Frosted Flatwoods and Reticulated Flatwoods salamanders, 74 Fed. Reg. 6700, 6716 (Feb. 10, 2009); the Canada lynx, 74 Fed. Reg. 8616, 8617, 8621 (Feb. 25, 2009); the Louisiana black bear, 74 Fed. Reg. 10,350, 10,356 (March 10, 2009); the Desert Bighorn sheep, 74 Fed. Reg. 17,288, 17,297, 17,303-05, 17,309 (April 14, 2009); and the Piping plover in Texas, 74 Fed. Reg. 23,476, 23,480-81, 23,488 (May 19, 2009).
p. 461: New Note 8: Recent Implementation of CITES: In January 2009, the U.S. government called public meetings to discuss CITES permitting in the United States for the harvest and export of American ginseng, which is listed in CITES Appendix II. See 74 Fed. Reg. 725 (Jan. 7, 2009). In addition, a recent proposal to downlist the Wood bison from endangered to threatened under the Endangered Species Act corresponded to a change in the species' CITES status, from Appendix I to Appendix II. 74 Fed. Reg. 5908, 5910 (Feb. 3, 2009).
p. 488: End of Note 2:
In May 2009, the United States again caused controversy when it issued its new Section 609 certifications. 74 Fed. Reg. 21,048 (May 6, 2009). The Secretary of State certifified that 15 shrimping countries have protections for sea turtles comparable to the United States': Belize, Colombia, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Madagascar, Mexico, Nicaragua, Nigeria, Pakistan, Panama, Suriname, and Venezuela. Twenty-four countries were certified because their cold-water shrimp fisheries posed no danger to sea turtles: Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom, and Uruguay. Finally, eight countries and one economic unit (Hong Kong) were certified because their small-technology shrimp fisheries posed no danger to sea turtles: Bahamas, China, the Dominican Republic, Fiji, Hong Kong, Jamaica, Oman, Peru, and Sri Lanka.
The controversy arose because the Secretary of State de-certified Costa Rica, on the grounds that Costa Rica was ineffectively enforcing its TED requirements. The de-certification was important news in Costa Rica.
p. 348: End of Note 1: The Politics and Economics of the Northern Spotted Owl Listing:
The Northern Spotted Owl also become embroiled in the allegations that former Deputy Assistant Secretary of the Interior Julie MacDonald interfered with the scientific and agency evaluations of species in 13 Endangered Species Act cases. Specifically, a lawsuit in the U.S. District Court for the District of Columbia (Carpenters Indistrial Council v. Salazar) alleged that Ms. MacDonald improperly interfered with the revisions of the spotted owl's recovery plan and critical habitat designation. On March 31, 2009, the U.S. Department of Justice and Interior Department asked the federal court to remand the recovery plan and critical habitat designation to the U.S. Fish & Wildlife Service for reconsideration.
p. 376: Before Sub-Section b:
The U.S. Fish & Wildlife Service and NMFS established most of the Section 7 consultation process through regulations. See 51 Fed. Reg. 19,926 (June 3, 1986). As a result, details of the consultation process can be altered by these agencies. A political battle ensued in December 2008, when the agencies, in the last days of President George W. Bush's Administration proposed new consultation regulations, to take effect on January 15, 2009 -- i.e., right before President Obama took office. These new regulations, according to the Obama Administration, served three primary purposes: (1) they redefined several of the key terms for the consultation process; (2) they narrowed the circumstances under which federal agencies had to engage in Section 7 consultation; and (3) they established timeframes for informal consultation.
On May 4, 2009, the Obama Administration withdrew the new consultation regulations, reinstating, with some minor amendments, the 1986 regulations. 74 Fed. Reg. 20,421 (May 4, 2009).
p. 386: New Note 7: The Discretionary Action Regulation: The ESA regulations currently state: "Section 7 and the requirements of this part [50 C.F.R. Part 402] apply to all actions in which there is discretionary Federal involvement or control." 50 C.F.R. 402.03.
p. 402: New Note 6: Climate Change and Other Aspects of the Endangered Species Act: Climate change impacts now routinely affect the ESA listing process, as well. In the first six months of 2009, for example, climate change played a role -- sometimes significant -- in the agencies' determinations that: (1) the black abalone should be listed as an endangered species, 74 Fed. Reg. 1937, 1939, 1941 (Jan. 14, 2009); (2) a petition to list the Wyoming pocket gopher was warranted, 74 Fed. Reg. 6558, 6562-63 (Feb. 10, 2009); (3) the Pacific eulachon should be proposed as a threatened species, 74 Fed. Reg. 10,857, 10,869, 10,870-74 (March 13, 2009); (4) a petition to list the Tehachapi slender salamander was warranted, 74 Fed. Reg. 18,336, 18,340-41 (April 22, 2009); and (5) a petition to list the American pika was warranted, 74 Fed. Reg. 21,301, 21,304-09 (May 7, 2009). Climate change impacts have also been argued less successfully in several other listing processes. See 74 Fed. Reg. 27,226, 27,270 (June 9, 2009) (Narrowleaf evening primrose); 74 Fed. Reg. 23,376, 23,381-84 (May 19, 2009) (Coaster brook trout); 74 Fed. Reg. 12,932, 12,939, 12,944-47, 12,960-62 (March 25, 2009) (Yellow-billed loon); 73 Fed. Reg. 79,822, 79,824-27 (Dec. 30, 2008) (Ribbon seal).
Climate change is also playing a role in critical habitat decisions. It has been relevant, for example, for the Frosted Flatwoods and Reticulated Flatwoods salamanders, 74 Fed. Reg. 6700, 6716 (Feb. 10, 2009); the Canada lynx, 74 Fed. Reg. 8616, 8617, 8621 (Feb. 25, 2009); the Louisiana black bear, 74 Fed. Reg. 10,350, 10,356 (March 10, 2009); the Desert Bighorn sheep, 74 Fed. Reg. 17,288, 17,297, 17,303-05, 17,309 (April 14, 2009); and the Piping plover in Texas, 74 Fed. Reg. 23,476, 23,480-81, 23,488 (May 19, 2009).
p. 461: New Note 8: Recent Implementation of CITES: In January 2009, the U.S. government called public meetings to discuss CITES permitting in the United States for the harvest and export of American ginseng, which is listed in CITES Appendix II. See 74 Fed. Reg. 725 (Jan. 7, 2009). In addition, a recent proposal to downlist the Wood bison from endangered to threatened under the Endangered Species Act corresponded to a change in the species' CITES status, from Appendix I to Appendix II. 74 Fed. Reg. 5908, 5910 (Feb. 3, 2009).
p. 488: End of Note 2:
In May 2009, the United States again caused controversy when it issued its new Section 609 certifications. 74 Fed. Reg. 21,048 (May 6, 2009). The Secretary of State certifified that 15 shrimping countries have protections for sea turtles comparable to the United States': Belize, Colombia, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Madagascar, Mexico, Nicaragua, Nigeria, Pakistan, Panama, Suriname, and Venezuela. Twenty-four countries were certified because their cold-water shrimp fisheries posed no danger to sea turtles: Argentina, Belgium, Canada, Chile, Denmark, Finland, Germany, Iceland, Ireland, the Netherlands, New Zealand, Norway, Russia, Sweden, the United Kingdom, and Uruguay. Finally, eight countries and one economic unit (Hong Kong) were certified because their small-technology shrimp fisheries posed no danger to sea turtles: Bahamas, China, the Dominican Republic, Fiji, Hong Kong, Jamaica, Oman, Peru, and Sri Lanka.
The controversy arose because the Secretary of State de-certified Costa Rica, on the grounds that Costa Rica was ineffectively enforcing its TED requirements. The de-certification was important news in Costa Rica.
| Back to the top |
In Chapter 4
p. 515: Continuing Note 3: The Aftermath of Massachusetts v. EPA:
On July 30, 2008, in response to pressure to respond to the Massachusetts v. EPAdecision, the Bush Administration's EPA issued an Advance Notice of Proposed Rulemaking to gather comments on "Regulating Greenhouse Gas Emissions Under the Clean Air Act." 73 Fed. Reg. 44,354 (July 30, 2008). Within this announcement, the EPA stated that "it has become clear that if EPA were to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, then regulation of smaller stationary sources that also emit GHGs -- such as apartment buildings, large home, schools, and hospitals -- could also be triggered. One point is clear: The potential regulation of greenhouse gases under any portion of the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land." Id. at 44,355.
Historical Documents for Massachusetts v. EPA:
The following are links to many of the documents related to the Massachusetts v. EPA litigation, including an edited version of the D.C. Circuit's decision for students.
(1) Jonathan Cannon's 1998 Memorandum for the Clinton Administration's EPA, arguing that the EPA did have authority under the Clean Air Act to regulate carbon dioxide as an air pollution.
Download PDF
(2) The International Center for Technology Assessment's (ICTA's) 1999 Petition to the EPA, requesting that the EPA regulate carbon dioxide.
Download PDF
(3) The National Academy of Science's controversial 2001 report on climate change, on which both the EPA and the D.C. Circuit relied.
Download PDF
(4) Several States' February 2003 Intent to Sue Letter to the EPA, threatening litigation over carbon dioxide.
Download PDF
(5) Robert Fabricant's August 2003 Memorandum for the Bush Administration's EPA, denying that the EPA has authority to regulate carbon dioxide under the Clean Air Act.
Download PDF
(6) California's August 2003 Petition for Review of the Robert Fabricant memorandum.
Download PDF
(7) The EPA's September 2003 denial of ICTA's petition.
Download PDF
(8) An edited version of the D.C. Circuit's 2005 decision in Massachusetts v. EPA.
Download PDF
(9) The D.C. Circuit's denial of rehearing in Massachusetts v. EPA.
Download PDF
(10) The petition for certiorari.
Download PDF
p. 515: New Note 4: The Obama Administration's EPA Issues a Proposed Endangerment Finding:
On April 24, 2009, the EPA for the new Obama Administration issued, in response to Massachusetts v. EPA, a proposed endangerment finding not just for carbon dioxide but also for 5 other greenhouse gases -- methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 18,886 (April 24, 2009). The EPA declined to include several other known greenhouse gases -- including water vapor, chlorofluorocarbons (CFCs), hydochlorofluorocarbons (HCFCs), halons, tropospheric ozone, black carbon, and fluorinated ethers -- in the endangerment finding. Id. at 18.896-97.
The EPA concluded that "the total body of scientific evidence compellingly supports a positive endangerment finding for both public health and welfare." Id. at 18,888. It concluded that the 6 greenhouse gases are causing and will continue to cause impacts, including increasing temperatures, changes in precipitation patterns, ice melt, rising sea levels, and stronger and more frequent storm events. Id. at 18,898-18,901. Public health impacts from these effects will be generally worsening over time and include heat-related health problems, increases in regional ozone pollution, increases in food- and water-borne pathogens and disease, and changes in allergen patterns. Id. at 18,901-02. The EPA virtually admitted that these are indirect impacts from greenhouse gas pollution but nevertheless asserted that the Clean Air Act's endangerment criteria extend to indirect health impacts:
"Some have argued that a positive endangerment finding for public health cannot be made because the health effects associated with elevated atmospheric concentrations of greenhouse gases occur via climate change, and not directly through inhalation or other exposure to the greenhouse gases themselves. These commenters argue that because 'climate' is included in the definition of welfare, the Act requires that all effects which may flow from a welfare effect must themselves be considered a welfare effect. The Administrator disagrees with this narrow view of the endangerment criteria. Mortality and morbidity that result from the effects of climate change are clearly public health problems. It would be anomalous to argue that a person who is injured or dies from heat exhaustion or increased exposure to a pathogen has not suffered a health impact."
Id. at 18,902.
Public welfare impacts, in turn, including the various impacts from heavy precipitation (flooding, runoff, erosion, and water quality impacts); reductions in water supplies; crop failures; problems in livestock production; forest fires, insect outbreaks, and tree mortality in forests of the interior West, Southwest, and Alaska; coastal storm surges and flooding; damage to water infrastructure; ocean acidifications; and rearrangements of and other impacts on ecosystems and biodiversity. Id. at 18, 902-03. Finally, the EPA also considered international effects. Id. at 18,903.
Comments on the endangerment finding closed on June 23, 2009. On June 25, 2009, the Competitive Enterprise Institute released an internal EPA report from Alan Carlin and John Davidson of the EPA's National Center for Environment and Economics, which questions the science behind the EPA's endangerment finding. Robin Bravender, "Two EPA Staffers Question Science Behind Climate 'Endangerment' Proposal," The New York Times (June 26, 2009). The report itself is available at http://www.eenews.net/public/25/11519/features/documents/2009/06/26/document_gw_01.pdf.
The EPA maintains a web site about its endangerment finding: U.S. EPA, Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act, http://epa.gov/climatechange/endangerment.html.
p. 515: New Note 5: Will the Clean Air Act Continue to Play a Role in Greenhouse Gas Regulation? The Possibility of Climate Change Legislation:
Because Massachusetts v. EPA addressed an issue of statutory interpretation, Congress remains free to remove greenhouse gas regulation from the scope of the criteria pollutant/NAAQS/SIP programs under the Act, and it may well do so in comprehensive climate change regulation. For example, On June 26, 2009, the U.S. House of Representatives passed the Waxman-Markey climate change bill -- the American Clean Energy and Security Act (H.R. 2454)-- by a narrow vote of 219-212. As voted on by the House, this bill would amend the Clean Air Act to enact a cap-and-trade program (see Part VI.B.3) to reduce emissions of multiple greenhouse gases, including carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, some hydrofluorocarbon emissions, perfluorocarbons, and nitrogen tetrafluoride. Each gas would be given a carbon dioxide equivalent value, and the emissions trading program would apply to electricity-generating and other industrial sources that emit more than 25,000 tons per year of carbon dioxide equivalent. The program would seek a reduction of 17% from 2005 emissions levels by 2020 and an 83% reduction by 2050. Until 2025, electric and natural gas utilities and home heating oil suppliers would receive 55% of the emissions allowances for free, to protect consumers from energy price increases.
In addition, the bill would repeal the EPA's authority to regulate greenhouse gas emissions through the Clean Air Act's existing programs.
The EPA estimates that the new climate change program would cost $80 to $110 per household per year. The Congressional Budget Office estimates that it will cost $175 per household per year.
p. 534: New Note 11: Implementing the New Particulate Matter NAAQS:
The particulate matter NAAQS in the chart on page 529 are the result of the EPA's 2006 rulemaking. 71 Fed. Reg. 61,143 (2006). These rules reduced the daily standard for PM2.5 -- particulate matter of 2.5 microns in diameter or less -- from 65 micrograms per cubic meter of air to 35 micrograms per cubic meter and set an annual standard for PM2.5 of 15 micrograms per cubic meter. The daily standard for PM10 -- particulate matter of between 2.5 and 10 microns in diameter -- was reduced from 150 micrograms per cubic meter to 70 micrograms per cubic meter. The final deadline for implementing the standards through SIPs was December 18, 2008.
The American Farm Bureau Federation and several states challenged the new particulate matter NAAQS. In February 2009, the U.S. Court of Appeals for the D.C. Circuit remanded the yearly NAAQS for PM2.5 to the EPA, concluding that the EPA had failed to adequately explain why that standard was sufficient, given harms to human health from short-term exposures to particulate matter. The EPA had acknowledged that it failed to consider short-term effects in setting the annual standard for PM2.5. American Farm Bureau Federation v. EPA, 559 F.3d 512, 520-22 (D.C. Cir. 2009).
In reporting on the D.C. Circuit's decision, the Los Angeles Times referred to the 2006 standard as "a Bush-era decision to water down rules controlling the fine soot particles that cause lung cancer, heart disease, and asthma." Margot Roosevelt, "Bush-era soot measure overturned," Los Angeles Times Greenspace, http://latimesblogs.latimes.com/greenspace/2009/02/soot-pollution.html (February 24, 2009).
The EPA maintains a web site about its 2006 Particulate Matter NAAQS: http://www.epa.gov/particles/naaqsrev2006.html.
p. 552: Federal Consistency Requirements: New Note 5: Consistency for Everything?:
There are other ways that federal agencies can avoid a consistency review of their actions. For example, on June 12, 2009, the U.S. Court of Appeals for the Ninth Circuit upheld the Federal Aviation Administration (FAA) in refusing to undergo a consistency review for flight path changes at airports. Interpreting the EPA's regulations, the Ninth Circuit concluded that consistency review was not required when the effects of the federal action on air quality would be de minimis. City of Las Vegas v. FAA, --- F.3d ---, 2009 WL 1637076, at *5-*6 (June 12, 2009).
pp. 579-580: Continuing Note 5: California, Low Emission Vehicle Standards, Climate Change, and Massachusetts v. EPA:
On March 6, 2008, the Bush Administration's EPA formally denied California's Section 209 waiver request for new vehicle greenhouse gas emission standards. 73 Fed. Reg. 12,156 (March 6, 2008). The EPA "concluded that Section 209(b) was intended to allow California to promulgate state standards applicable to emissions from new motor vehicles to address pollution problems that are local or regional. [The EPA does] not believe section 209(b)(1)(B) was intended to allow California to promulgate state standards for emissions from new motor vehicles to address global climate change problems; nor, in the alternative, [does the EPA] believe that the effects of climate change in California are compelling and extraordinary compared to the effects in the rest of the country." Id. at 12,156-57.
Protests were immediate, and even Congress began to investigate the EPA's denial of California's waiver request. With the change in presidential administration, however, California's request is being reconsidered. On February 12, 2009, the Obama Administration's EPA announced that it would review California's request for a waiver. U.S. EPA, California Greenhouse Gas Waiver Request, http://www.epa.gov/otaq/climate/ca-waiver.htm.
It is worth noting, however, that the denial in the greenhouse gas context was truly unusual, even for the Bush Administration. For example, six months later, the Bush Administrative granted California's waiver request to allow it to require 2010 model year heavy-duty vehicles and engines to have on-board diagnostice systems. 73 Fed. Reg. 52,042 (September 8, 2008).
p. 580: New Note 6: The Breadth of the Clean Air Act's Preemption of Mobile Source Emissions:
It is worth noting that the Section 209 preemption can apply to many mobile sources. For example, in late 2008, the U.S. Court of Appeals for the Ninth Circuit held that the Clean Air Act preempted California's regulations limiting emissions from the auxiliary diesel engines of ocean-going vessels within 24 miles of California's coast. Pacific Merchant Shipping Ass'n v. Goldstone, 517 F.3d 1108 (9th Cir. 2008).
p. 582: ADD TO THE END OF SUBPART B.3:
Fuel standards under the Clean Air Act have also become caught up with more general federal energy policies, especially use of renewable fuels. As one example, in April 2009, the EPA granted a waiver request from Growth Energy and 54 ethanol manufacturers pursuant to Section 211(f) to allow the use of gasoline that is 15% ethanol. 74 Fed. Reg. 18,228 (April 21, 2009).
More comprehensively, the Energy Policy Act of 2005 created, in Section 211(o) of the Clean Air Act, the Renewable Fuel Standard Program. These amendments imposed an expanded renewable fuel requirement and recognized four categories of renewable fuels: cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. Criteria for renewable fuels now include life cycle greenhouse gas emission performance, and the fuels covered include not only gasoline but also diesel and certain nonroad fuels. Cellulosic biofuels also received the benefits of waiver provisions and EPA credits.
Under the Renewable Fuels Standard Program, the EPA sets a yearly standard for renewable fuels, expressed as a percentage of applicable fuels. For 2009, for example, the renewable fuels standard is 10.21%. 73 Fed. Reg. 70,643 (Nov. 21, 2008).
pp.606: New Note 8: Other Nonattainment Redesignations for Ozone:
For ozone in particular, designations of AQCRs can more complex than simply "attainment" or "nonattainment" because the Clean Air Act recognizes several categories of ozone nonattainment. As one example, in October 2008, at the request of the Governor of Texas, the EPA re-designated the Houston/Galveston/Brazoria Ozone Nonattainment Area from "moderate" 8-hour ozone nonattainment to "severe" 8-hour ozone nonattainment. 73 Fed. Reg. 56,983 (Oct. 1, 2008).
p. 632: New Note 8: Counting Emissions for New Source Review in the PSD Program:
NSR regulations have been potentially ambiguous because they refer to changes in a source's emissions -- arguably, any change in the emissions of any air pollutant, regardless of whether that air pollutant is otherwise regulated under the Clean Air Act. Toward the end of the Bush Administration, the EPA interpreted its own regulations in a December 18, 2008 memorandum, then gave notice in the Federal Registers that "[a]s of the date of the memorandum, EPA interprets this definition of 'regulated NSR pollutant' to exclude pollutants for which EPA regulations only require monitoring or reporting but include all pollutants subject to a provision in the Act or regulation adopted by EPA pursuant to the Act that requires actual control of emissions of that pollutant." 73 Fed. Reg. 80,300, 80,301 (Dec. 31, 2008).
p. 632: New Note 9: New Source Review Regulations and the Change in Presidential Administration:
As Environmental Defense v. Duke Energy Corp. makes clear, new source review has been controversial -- and subject to administration-by-administration changes -- for some time. The transition from the Bush Administration to the Obama Administration is being no different. The EPA keeps track of the status of the various new source review regulations at U.S. EPA, New Source Review: Regulations and Standards, http://www.epa.gov/nsr/actions.html.
As the Bush Administration was leaving office, it published two new NSR regulations for the PSD program -- the "aggregation" rule and the "flexible air permmitting" rule -- in addition to several earlier regulations, as Note 7 indicates. PSD & NSR: Aggregation and Project Netting, 74 Fed. Reg. 2376 (Jan. 15, 2009). In response to petitions for reconsideration, the Obama EPA stayed the effective date of these new regulations until May 18, 2009, in order to review them. On May 14, 2009, it extended that deadline to May 18, 2010.
In addition, on April 24, 2009, the Obama Administration's EPA granted several petitions to review three other aspects of the Bush Administration's NSR rules. These petitions cover the regulations governing fugitive emissions; the regulations governing the "reasonable possibility standard"; and the regulations governing the PM2.5 NSR Permitting Rule.
Thus, the exact requirements for the new source review program are currently in flux.
p. 644: ADD TO TEXT BEFORE SUBPART 3:
For a recent example of a GACT rule for area sources, see Area Source standards for Aluminum, Copper, and Other Nonferrous Foundries, 74 Fed. Reg. 30,366 (June 25, 2009).
p. 515: Continuing Note 3: The Aftermath of Massachusetts v. EPA:
On July 30, 2008, in response to pressure to respond to the Massachusetts v. EPAdecision, the Bush Administration's EPA issued an Advance Notice of Proposed Rulemaking to gather comments on "Regulating Greenhouse Gas Emissions Under the Clean Air Act." 73 Fed. Reg. 44,354 (July 30, 2008). Within this announcement, the EPA stated that "it has become clear that if EPA were to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, then regulation of smaller stationary sources that also emit GHGs -- such as apartment buildings, large home, schools, and hospitals -- could also be triggered. One point is clear: The potential regulation of greenhouse gases under any portion of the Clean Air Act could result in an unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land." Id. at 44,355.
Historical Documents for Massachusetts v. EPA:
The following are links to many of the documents related to the Massachusetts v. EPA litigation, including an edited version of the D.C. Circuit's decision for students.
(1) Jonathan Cannon's 1998 Memorandum for the Clinton Administration's EPA, arguing that the EPA did have authority under the Clean Air Act to regulate carbon dioxide as an air pollution.
Download PDF
(2) The International Center for Technology Assessment's (ICTA's) 1999 Petition to the EPA, requesting that the EPA regulate carbon dioxide.
Download PDF
(3) The National Academy of Science's controversial 2001 report on climate change, on which both the EPA and the D.C. Circuit relied.
Download PDF
(4) Several States' February 2003 Intent to Sue Letter to the EPA, threatening litigation over carbon dioxide.
Download PDF
(5) Robert Fabricant's August 2003 Memorandum for the Bush Administration's EPA, denying that the EPA has authority to regulate carbon dioxide under the Clean Air Act.
Download PDF
(6) California's August 2003 Petition for Review of the Robert Fabricant memorandum.
Download PDF
(7) The EPA's September 2003 denial of ICTA's petition.
Download PDF
(8) An edited version of the D.C. Circuit's 2005 decision in Massachusetts v. EPA.
Download PDF
(9) The D.C. Circuit's denial of rehearing in Massachusetts v. EPA.
Download PDF
(10) The petition for certiorari.
Download PDFp. 515: New Note 4: The Obama Administration's EPA Issues a Proposed Endangerment Finding:
On April 24, 2009, the EPA for the new Obama Administration issued, in response to Massachusetts v. EPA, a proposed endangerment finding not just for carbon dioxide but also for 5 other greenhouse gases -- methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 18,886 (April 24, 2009). The EPA declined to include several other known greenhouse gases -- including water vapor, chlorofluorocarbons (CFCs), hydochlorofluorocarbons (HCFCs), halons, tropospheric ozone, black carbon, and fluorinated ethers -- in the endangerment finding. Id. at 18.896-97.
The EPA concluded that "the total body of scientific evidence compellingly supports a positive endangerment finding for both public health and welfare." Id. at 18,888. It concluded that the 6 greenhouse gases are causing and will continue to cause impacts, including increasing temperatures, changes in precipitation patterns, ice melt, rising sea levels, and stronger and more frequent storm events. Id. at 18,898-18,901. Public health impacts from these effects will be generally worsening over time and include heat-related health problems, increases in regional ozone pollution, increases in food- and water-borne pathogens and disease, and changes in allergen patterns. Id. at 18,901-02. The EPA virtually admitted that these are indirect impacts from greenhouse gas pollution but nevertheless asserted that the Clean Air Act's endangerment criteria extend to indirect health impacts:
"Some have argued that a positive endangerment finding for public health cannot be made because the health effects associated with elevated atmospheric concentrations of greenhouse gases occur via climate change, and not directly through inhalation or other exposure to the greenhouse gases themselves. These commenters argue that because 'climate' is included in the definition of welfare, the Act requires that all effects which may flow from a welfare effect must themselves be considered a welfare effect. The Administrator disagrees with this narrow view of the endangerment criteria. Mortality and morbidity that result from the effects of climate change are clearly public health problems. It would be anomalous to argue that a person who is injured or dies from heat exhaustion or increased exposure to a pathogen has not suffered a health impact."
Id. at 18,902.
Public welfare impacts, in turn, including the various impacts from heavy precipitation (flooding, runoff, erosion, and water quality impacts); reductions in water supplies; crop failures; problems in livestock production; forest fires, insect outbreaks, and tree mortality in forests of the interior West, Southwest, and Alaska; coastal storm surges and flooding; damage to water infrastructure; ocean acidifications; and rearrangements of and other impacts on ecosystems and biodiversity. Id. at 18, 902-03. Finally, the EPA also considered international effects. Id. at 18,903.
Comments on the endangerment finding closed on June 23, 2009. On June 25, 2009, the Competitive Enterprise Institute released an internal EPA report from Alan Carlin and John Davidson of the EPA's National Center for Environment and Economics, which questions the science behind the EPA's endangerment finding. Robin Bravender, "Two EPA Staffers Question Science Behind Climate 'Endangerment' Proposal," The New York Times (June 26, 2009). The report itself is available at http://www.eenews.net/public/25/11519/features/documents/2009/06/26/document_gw_01.pdf.
The EPA maintains a web site about its endangerment finding: U.S. EPA, Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act, http://epa.gov/climatechange/endangerment.html.
p. 515: New Note 5: Will the Clean Air Act Continue to Play a Role in Greenhouse Gas Regulation? The Possibility of Climate Change Legislation:
Because Massachusetts v. EPA addressed an issue of statutory interpretation, Congress remains free to remove greenhouse gas regulation from the scope of the criteria pollutant/NAAQS/SIP programs under the Act, and it may well do so in comprehensive climate change regulation. For example, On June 26, 2009, the U.S. House of Representatives passed the Waxman-Markey climate change bill -- the American Clean Energy and Security Act (H.R. 2454)-- by a narrow vote of 219-212. As voted on by the House, this bill would amend the Clean Air Act to enact a cap-and-trade program (see Part VI.B.3) to reduce emissions of multiple greenhouse gases, including carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, some hydrofluorocarbon emissions, perfluorocarbons, and nitrogen tetrafluoride. Each gas would be given a carbon dioxide equivalent value, and the emissions trading program would apply to electricity-generating and other industrial sources that emit more than 25,000 tons per year of carbon dioxide equivalent. The program would seek a reduction of 17% from 2005 emissions levels by 2020 and an 83% reduction by 2050. Until 2025, electric and natural gas utilities and home heating oil suppliers would receive 55% of the emissions allowances for free, to protect consumers from energy price increases.
In addition, the bill would repeal the EPA's authority to regulate greenhouse gas emissions through the Clean Air Act's existing programs.
The EPA estimates that the new climate change program would cost $80 to $110 per household per year. The Congressional Budget Office estimates that it will cost $175 per household per year.
p. 534: New Note 11: Implementing the New Particulate Matter NAAQS:
The particulate matter NAAQS in the chart on page 529 are the result of the EPA's 2006 rulemaking. 71 Fed. Reg. 61,143 (2006). These rules reduced the daily standard for PM2.5 -- particulate matter of 2.5 microns in diameter or less -- from 65 micrograms per cubic meter of air to 35 micrograms per cubic meter and set an annual standard for PM2.5 of 15 micrograms per cubic meter. The daily standard for PM10 -- particulate matter of between 2.5 and 10 microns in diameter -- was reduced from 150 micrograms per cubic meter to 70 micrograms per cubic meter. The final deadline for implementing the standards through SIPs was December 18, 2008.
The American Farm Bureau Federation and several states challenged the new particulate matter NAAQS. In February 2009, the U.S. Court of Appeals for the D.C. Circuit remanded the yearly NAAQS for PM2.5 to the EPA, concluding that the EPA had failed to adequately explain why that standard was sufficient, given harms to human health from short-term exposures to particulate matter. The EPA had acknowledged that it failed to consider short-term effects in setting the annual standard for PM2.5. American Farm Bureau Federation v. EPA, 559 F.3d 512, 520-22 (D.C. Cir. 2009).
In reporting on the D.C. Circuit's decision, the Los Angeles Times referred to the 2006 standard as "a Bush-era decision to water down rules controlling the fine soot particles that cause lung cancer, heart disease, and asthma." Margot Roosevelt, "Bush-era soot measure overturned," Los Angeles Times Greenspace, http://latimesblogs.latimes.com/greenspace/2009/02/soot-pollution.html (February 24, 2009).
The EPA maintains a web site about its 2006 Particulate Matter NAAQS: http://www.epa.gov/particles/naaqsrev2006.html.
p. 552: Federal Consistency Requirements: New Note 5: Consistency for Everything?:
There are other ways that federal agencies can avoid a consistency review of their actions. For example, on June 12, 2009, the U.S. Court of Appeals for the Ninth Circuit upheld the Federal Aviation Administration (FAA) in refusing to undergo a consistency review for flight path changes at airports. Interpreting the EPA's regulations, the Ninth Circuit concluded that consistency review was not required when the effects of the federal action on air quality would be de minimis. City of Las Vegas v. FAA, --- F.3d ---, 2009 WL 1637076, at *5-*6 (June 12, 2009).
pp. 579-580: Continuing Note 5: California, Low Emission Vehicle Standards, Climate Change, and Massachusetts v. EPA:
On March 6, 2008, the Bush Administration's EPA formally denied California's Section 209 waiver request for new vehicle greenhouse gas emission standards. 73 Fed. Reg. 12,156 (March 6, 2008). The EPA "concluded that Section 209(b) was intended to allow California to promulgate state standards applicable to emissions from new motor vehicles to address pollution problems that are local or regional. [The EPA does] not believe section 209(b)(1)(B) was intended to allow California to promulgate state standards for emissions from new motor vehicles to address global climate change problems; nor, in the alternative, [does the EPA] believe that the effects of climate change in California are compelling and extraordinary compared to the effects in the rest of the country." Id. at 12,156-57.
Protests were immediate, and even Congress began to investigate the EPA's denial of California's waiver request. With the change in presidential administration, however, California's request is being reconsidered. On February 12, 2009, the Obama Administration's EPA announced that it would review California's request for a waiver. U.S. EPA, California Greenhouse Gas Waiver Request, http://www.epa.gov/otaq/climate/ca-waiver.htm.
It is worth noting, however, that the denial in the greenhouse gas context was truly unusual, even for the Bush Administration. For example, six months later, the Bush Administrative granted California's waiver request to allow it to require 2010 model year heavy-duty vehicles and engines to have on-board diagnostice systems. 73 Fed. Reg. 52,042 (September 8, 2008).
p. 580: New Note 6: The Breadth of the Clean Air Act's Preemption of Mobile Source Emissions:
It is worth noting that the Section 209 preemption can apply to many mobile sources. For example, in late 2008, the U.S. Court of Appeals for the Ninth Circuit held that the Clean Air Act preempted California's regulations limiting emissions from the auxiliary diesel engines of ocean-going vessels within 24 miles of California's coast. Pacific Merchant Shipping Ass'n v. Goldstone, 517 F.3d 1108 (9th Cir. 2008).
p. 582: ADD TO THE END OF SUBPART B.3:
Fuel standards under the Clean Air Act have also become caught up with more general federal energy policies, especially use of renewable fuels. As one example, in April 2009, the EPA granted a waiver request from Growth Energy and 54 ethanol manufacturers pursuant to Section 211(f) to allow the use of gasoline that is 15% ethanol. 74 Fed. Reg. 18,228 (April 21, 2009).
More comprehensively, the Energy Policy Act of 2005 created, in Section 211(o) of the Clean Air Act, the Renewable Fuel Standard Program. These amendments imposed an expanded renewable fuel requirement and recognized four categories of renewable fuels: cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. Criteria for renewable fuels now include life cycle greenhouse gas emission performance, and the fuels covered include not only gasoline but also diesel and certain nonroad fuels. Cellulosic biofuels also received the benefits of waiver provisions and EPA credits.
Under the Renewable Fuels Standard Program, the EPA sets a yearly standard for renewable fuels, expressed as a percentage of applicable fuels. For 2009, for example, the renewable fuels standard is 10.21%. 73 Fed. Reg. 70,643 (Nov. 21, 2008).
pp.606: New Note 8: Other Nonattainment Redesignations for Ozone:
For ozone in particular, designations of AQCRs can more complex than simply "attainment" or "nonattainment" because the Clean Air Act recognizes several categories of ozone nonattainment. As one example, in October 2008, at the request of the Governor of Texas, the EPA re-designated the Houston/Galveston/Brazoria Ozone Nonattainment Area from "moderate" 8-hour ozone nonattainment to "severe" 8-hour ozone nonattainment. 73 Fed. Reg. 56,983 (Oct. 1, 2008).
p. 632: New Note 8: Counting Emissions for New Source Review in the PSD Program:
NSR regulations have been potentially ambiguous because they refer to changes in a source's emissions -- arguably, any change in the emissions of any air pollutant, regardless of whether that air pollutant is otherwise regulated under the Clean Air Act. Toward the end of the Bush Administration, the EPA interpreted its own regulations in a December 18, 2008 memorandum, then gave notice in the Federal Registers that "[a]s of the date of the memorandum, EPA interprets this definition of 'regulated NSR pollutant' to exclude pollutants for which EPA regulations only require monitoring or reporting but include all pollutants subject to a provision in the Act or regulation adopted by EPA pursuant to the Act that requires actual control of emissions of that pollutant." 73 Fed. Reg. 80,300, 80,301 (Dec. 31, 2008).
p. 632: New Note 9: New Source Review Regulations and the Change in Presidential Administration:
As Environmental Defense v. Duke Energy Corp. makes clear, new source review has been controversial -- and subject to administration-by-administration changes -- for some time. The transition from the Bush Administration to the Obama Administration is being no different. The EPA keeps track of the status of the various new source review regulations at U.S. EPA, New Source Review: Regulations and Standards, http://www.epa.gov/nsr/actions.html.
As the Bush Administration was leaving office, it published two new NSR regulations for the PSD program -- the "aggregation" rule and the "flexible air permmitting" rule -- in addition to several earlier regulations, as Note 7 indicates. PSD & NSR: Aggregation and Project Netting, 74 Fed. Reg. 2376 (Jan. 15, 2009). In response to petitions for reconsideration, the Obama EPA stayed the effective date of these new regulations until May 18, 2009, in order to review them. On May 14, 2009, it extended that deadline to May 18, 2010.
In addition, on April 24, 2009, the Obama Administration's EPA granted several petitions to review three other aspects of the Bush Administration's NSR rules. These petitions cover the regulations governing fugitive emissions; the regulations governing the "reasonable possibility standard"; and the regulations governing the PM2.5 NSR Permitting Rule.
Thus, the exact requirements for the new source review program are currently in flux.
p. 644: ADD TO TEXT BEFORE SUBPART 3:
For a recent example of a GACT rule for area sources, see Area Source standards for Aluminum, Copper, and Other Nonferrous Foundries, 74 Fed. Reg. 30,366 (June 25, 2009).
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In Chapter 5
p. 739: ADDITIONAL RESOURCES FOR THE RAPANOS CASE:
Breaking Down Rapanos (MS-Word Chart)
Breaking Down Rapanos (HTML Chart)
pp. 754-55: ADDITIONAL RESOURCE FOR NOTE 3: THE RAPANOS GUIDANCE:
As this Note recognizes, the EPA and Army Corps have issued guidance regarding how the Rapanos decision should apply. Those guidance documents are availabe here.
On July 5, 2006, the Army Corps issued the following interim guidance to the district office regarding the implementation of Rapanos:
Army Corps Reaction to Rapanos (PDF)
On June 5, 2007, the EPA and the Army Corps issued guidance regarding their Clean Water Act jurisdiction in light of the Rapanos decision.
These documents include:
The Guidance Memorandum (PDF)
The Memorandum of Agreement (PDF)
Questions and Answers on the Effect of Rapanos (PDF)
p. 769: SECTION III. NPDES PERMITS: INSERT NEW CASE AFTER FIRST SENTENCE:
In general, the decision as to which permit program applies has not been difficult. However, recently the federal courts were confronted facts that seemed to render a discharge from a gold mine in Alaska subject to BOTH the NPDES and the Section 404 permit programs simultaneously. In June 2009, the U.S. Supreme Court resolved the permitting issue in the following case.
The Coeur Alaska Decision, edited and with notes (Word)
p. 794: NEW SUBSECTION G: Additional NPDES Permit Requirements for Cooling Water Intake:
Other NPDES permit requirements do exist. For example, Section 316(a), 33 U.S.C. s 1326(a), allows more stringent controls of thermal discharges from point sources if necessary "to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made . . . ."
Section 316(b) also can impose requirements on NPDES permits, but it is a very unusual provision because it deals with water intake -- not discharges of pollutants. Under this provision, "[a]ny standard established pursuant to section 1311 of this title [standard technology-based effluent limitations for existing sources] or section 1316 of this title [new source performance standards] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. 33 U.S.C. s 1326(b) (emphasis added).
In April 2009, the U.S. Supreme Court addressed the EPA's application of Section 316(b) to existing sources, mostly power plants. While doing so, the Court provided a helpful comparison of the Clean Water Act's various technology-based standards -- and extensively discussed the role of economics and cost-benefit analysis in establishing those standards.
The Entergy Corp. v. Riverkeeper Decision, edited and with notes (Word)
p. 878: NEW NOTE 3: The S.D. Warren Decision, and RESOURCES FOR THAT NOTE:
A month before the U.S. Supreme Court issued its fractured decision in Rapanos, it issued a unanimous opinion in the S.D. Warren case, which involved the meaning of "discharge" for purposes of Section 401. Importantly, as in PUD No. 1 of Jefferson County, the Court upheld the states' broad authority under Section 401 to condition federal licenses and permits that can impact water quality.
S.D. Warren Decision (MS-Word)
S.D. Warren Decision (HTML)
p. 739: ADDITIONAL RESOURCES FOR THE RAPANOS CASE:
Breaking Down Rapanos (MS-Word Chart) Breaking Down Rapanos (HTML Chart)
pp. 754-55: ADDITIONAL RESOURCE FOR NOTE 3: THE RAPANOS GUIDANCE:
As this Note recognizes, the EPA and Army Corps have issued guidance regarding how the Rapanos decision should apply. Those guidance documents are availabe here.
On July 5, 2006, the Army Corps issued the following interim guidance to the district office regarding the implementation of Rapanos:
Army Corps Reaction to Rapanos (PDF)On June 5, 2007, the EPA and the Army Corps issued guidance regarding their Clean Water Act jurisdiction in light of the Rapanos decision. These documents include:
The Guidance Memorandum (PDF)
The Memorandum of Agreement (PDF)
Questions and Answers on the Effect of Rapanos (PDF)
p. 769: SECTION III. NPDES PERMITS: INSERT NEW CASE AFTER FIRST SENTENCE:
In general, the decision as to which permit program applies has not been difficult. However, recently the federal courts were confronted facts that seemed to render a discharge from a gold mine in Alaska subject to BOTH the NPDES and the Section 404 permit programs simultaneously. In June 2009, the U.S. Supreme Court resolved the permitting issue in the following case.
The Coeur Alaska Decision, edited and with notes (Word)p. 794: NEW SUBSECTION G: Additional NPDES Permit Requirements for Cooling Water Intake:
Other NPDES permit requirements do exist. For example, Section 316(a), 33 U.S.C. s 1326(a), allows more stringent controls of thermal discharges from point sources if necessary "to assure the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made . . . ."
Section 316(b) also can impose requirements on NPDES permits, but it is a very unusual provision because it deals with water intake -- not discharges of pollutants. Under this provision, "[a]ny standard established pursuant to section 1311 of this title [standard technology-based effluent limitations for existing sources] or section 1316 of this title [new source performance standards] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. 33 U.S.C. s 1326(b) (emphasis added).
In April 2009, the U.S. Supreme Court addressed the EPA's application of Section 316(b) to existing sources, mostly power plants. While doing so, the Court provided a helpful comparison of the Clean Water Act's various technology-based standards -- and extensively discussed the role of economics and cost-benefit analysis in establishing those standards.
The Entergy Corp. v. Riverkeeper Decision, edited and with notes (Word)p. 878: NEW NOTE 3: The S.D. Warren Decision, and RESOURCES FOR THAT NOTE:
A month before the U.S. Supreme Court issued its fractured decision in Rapanos, it issued a unanimous opinion in the S.D. Warren case, which involved the meaning of "discharge" for purposes of Section 401. Importantly, as in PUD No. 1 of Jefferson County, the Court upheld the states' broad authority under Section 401 to condition federal licenses and permits that can impact water quality.
S.D. Warren Decision (MS-Word) S.D. Warren Decision (HTML)| Back to the top |
In Chapter 6
p. 937: Insert before Subpart 2: Summers v. Earth Island Institute: The U.S. Supreme Court's most recent discussion of environmental standing was its 2009 decision in Summers v. Earth Island Institute. As you read that decision, think about the different approaches of the majority and the dissent. Was standing the right ground on which to decide this case? Or, for students who have taken administrative law, did this case really involve a ripeness issue? As a matter of litigation strategy after this case, should an environmental citizen suit plaintiff EVER settle the one live controversy if there are larger issues at stake?
The Summers v. Earth Island Institute Decision, edited. (Word)
p. 937: Insert before Subpart 2: Summers v. Earth Island Institute: The U.S. Supreme Court's most recent discussion of environmental standing was its 2009 decision in Summers v. Earth Island Institute. As you read that decision, think about the different approaches of the majority and the dissent. Was standing the right ground on which to decide this case? Or, for students who have taken administrative law, did this case really involve a ripeness issue? As a matter of litigation strategy after this case, should an environmental citizen suit plaintiff EVER settle the one live controversy if there are larger issues at stake?
The Summers v. Earth Island Institute Decision, edited. (Word)| Back to the top |
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