Key Historical Court Decisions Shaping EPA’s Program Under the Clean Air Act

Summary

This report provides a selective overview of court decisions that historically have most shaped EPA’s program under the Clean Air Act (CAA). Court decisions described in the report deal with the following:

National ambient air quality standards (NAAQSs), holding that in setting the standards EPA is not to consider economic and technological feasibility.

State implementation plans for achieving NAAQSs, holding that EPA also may not consider economic and technological feasibility in approving or disapproving such plans, or the fact that the state plan is more stringent than necessary, or does not require an EPA-preferred control method.

Interstate air pollution, holding that EPA may consider costs in applying the CAA “good neighbor” provision, but any emissions trading program must assure some emission reduction in each upwind state. Nor does the CAA require that states be given a second opportunity to file an implementation plan after EPA has quantified the state emissions budget; EPA may promulgate its own plan for the state immediately.

New source performance standards (NSPSs), holding that while the Act requires them to be based on “adequately demonstrated” technology, that does not imply that any existing source of the type proposed for a NSPS is able to meet the NSPS.

New source review in areas cleaner than NAAQSs, holding that EPA may override a state’s determination of the “best available control technology” required for new stationary sources. New source review may be required for greenhouse gas emitters only if the new source will emit conventional pollutants in threshold amounts.

The “routine maintenance” exemption from NSPSs and new source review, created by EPA and accepted by the courts despite statutory silence. Courts hold that whether the exemption applies depends on the increase in a plant’s expected life due to the project, and the project’s cost, nature, and magnitude. Expansive interpretation of the exemption has been judicially rejected.

The “bubble concept,” an EPA approach that looks at net changes in the emissions of a pollutant from a facility, holding that its permissibility depends on statutory context.

National standards for hazardous air pollutants, holding that EPA may determine if a facility triggers the Act’s “maximum achievable control technology” requirement for such pollutants by aggregating emission sources in a contiguous plant under common control, not just sources within the same source category. Also, EPA is not limited in setting emission standards to hazardous air pollutants currently controlled with technology.

Greenhouse gas emissions, holding that the CAA generally covers them, and that EPA cannot elect not to exercise that authority based on policy concerns. See, however, “new source review” above.

Enforcement, holding that the recipient of an administrative compliance order must be allowed to seek pre-enforcement review of the order in court.