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This Month's News & Analysis

Volume 44, Issue 4 — April 2014

Dialogue

Resolved: EPA and States Can Regulate Emissions Outside the Facility Fence Line Under Clean Air Act §111

by Megan Ceronsky, David Doniger, Jeffrey R. Holmstead, Scott H. Segal, Scott Schang

Whether U.S. EPA and states can regulate emissions outside the facility fence line is a critical factor in shaping the regulatory response to climate change using Clean Air Act §111. There has been much rhetoric about the ability of states and EPA to create regulatory tools such as emissions trading of greenhouse gases, but policy experts and professionals need a more definitive answer. To address this topic, ELI held the second seminar of its Professional Practice Series. Loosely following an academic debate structure, two expert teams argued the resolution, asked questions of the other side, and identified points of agreement and disagreement. Following the debate, the discussion was open to audience questions.

Comment(s)

The Clean Air Act: An Environmental Veneer for Protectionism?

by Donald R. van der Vaart and John C. Evans

The Clean Air Act (CAA) was founded on the principle that a maximum safe national ambient air quality standard (NAAQS) concentration existed for each pollutant. Once those concentrations were defined, emission limitations for individual plants could be determined that ensured those concentrations would not be exceeded in ambient air. The CAA gives the states the primary authority to define the emission limitations necessary to meet the NAAQS in their airsheds. The collection of emission limits forms the state implementation plan (SIP) that, when approved by the U.S. Environmental Protection Agency (EPA), becomes enforceable by EPA and the public as well as the state. Key features of SIP rules are (1) the emission limitations ensure compliance with, or attainment of, the NAAQS both within the state and in the air of its neighbors, and (2) the emission standards apply to all emission sources, both existing and new.

The Newest Player in the Climate Change/Renewable Energy Game: EPA’s $100+ Billion Clean Water State Revolving Fund

by Michael Curley and Lindsay Haislip

On August 13, 2013, the state of New York set an important legal precedent that could help to retard climate change and reduce greenhouse gas (GHG) emissions in the United States. On that day, the New York State Energy Research and Development Authority (the Authority) issued $23.4 million in bonds to fund residential energy-efficiency projects. The bonds were rated AAA/Aaa, thanks to a financial guaranty from the New York State Environmental Facilities Corporation (EFC). What was astonishing was that the EFC, which manages the Clean Water State Revolving Fund (CWSRF) in New York, used legal authority under the Clean Water Act (CWA)—not the Clean Air Act—to effectuate the guaranty.

Articles

The Important Role of Standards in National Forest Planning, Law, and Management

by Martin Nie and Emily Schembra

A focal point in conflict over U.S. national forest management is the writing of regulations and forest plans pursuant to the National Forest Management Act. One of the most contested questions in forest planning is what role standards play and ought to play in the process. Standards are legally enforceable, binding, and mandatory requirements and constraints that are found in planning regulations or individual unit-level national forest plans. Case law and public comments reveal key issues, questions, and concerns related to the use of standards in forest planning and law.

Ownership Models for Geological Sequestration: A Comparison of the Emergent Regulatory Models in Australia and the United States

by Samantha J. Hepburn

Modern property frameworks are increasingly deployed to support climate change mitigation strategies. The propertization of geological storage formations, utilized for the purpose of carbon capture and storage (CCS), provides a compelling example of this. Pursuant to regulatory changes to the propertization of CCS in the Australian states of Victoria and Queensland, ownership lies with the State, while in the United States, in Montana, North Dakota, and Wyoming, ownership remains with the private owner. State ownership is preferable as it provides clarity, structure, and certainty for CCS markets. It also removes the difficulties associated with potential CCS projects having to obtain multiple authorizations from private owners, reduces disparity and conflict between subsurface owners, and minimizes future liability. The transformative shift from a disaggregated private resource to a state-owned independent resource must be dealt with carefully so that its impact upon preexisting surface entitlements is clear.

Unfounded Fears About Pollution Trading and Hotspots

by David E. Adelman

EPA emissions inventory and cancer risk data for criteria pollutants and air toxics show clearly that vehicles and small stationary sources emit a majority of the air pollution nationally and account for most of the cancer risks from air toxics. Industrial sources, by contrast, rarely account for more than 10% of cumulative cancer risks from all outdoor sources of air toxics. The observed pattern of emissions is replicated at spatial scales ranging from census tracts to the nation as a whole. The secondary status of industrial facilities as sources of air pollution largely neutralizes the potential for pollution trading programs to cause hotspots. In the vast majority of jurisdictions, industrial emissions are simply too low, and in the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising market efficiency. These findings are generalizable to all market-based regulations.

In the Courts

Missouri court upholds local sales tax to finance light rail.

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In the Courts Archive

In the Agencies

USDA proposes revisions to NEPA policies.

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In the Agencies Archive

In the Congress

In the States

Nevada proposes revisions to oil and gas drilling regulations.

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In the States Archive