EFO 2019 Air Quality Regulatory Updatesenvirofdok.org/wp-content/uploads/2019/10/1.-EFO...2019/10/01 · Updates on three topics: •CEMS Regulatory Interpretation •Clean Power

EFO 2019 – Air Quality Regulatory Updates

Robert D. Singletary

[email protected]

October 9, 2019

Updates on three topics:

• CEMS Regulatory Interpretation

• Clean Power Plan/Affordable Clean Energy Rule

• California Fuel Standard

»

EFO 2019 – Air Quality Regulatory Update

Timeline:

• April 18, 2017 - DEQ’s Tulsa office requested clarification from EPA R6 on:

- Reporting of CMS Downtime

- Calculation of Hourly Average

• June 26, 2017 - EPA R6 responded to DEQ and issued a Regulatory Interpretation

• Summer/Fall 2018 - DEQ requested EPA R6 to withdraw the Regulatory Interpretation

CEMS REGULATORY INTERPRETATION

Timeline (Cont.):

• Spring 2019 - DEQ continued working with EPA R6 to get the Regulatory Interpretation withdrawn

• March 18, 2019 - Regulatory Interpretation was published in the Federal Register

- Regulatory Interpretation for Continuous Monitoring System Downtime and Emission Reporting, Control No. 1700037, 84 Fed.Reg. 9783

»


Timeline (Cont.):

• May 17, 2019 - Petition for Review challenging the Regulatory Interpretation filed in D.C. Circuit

- American Forest & Paper Association, Inc. and American Wood Council v. EPA, Case No. 19-1108 (D.C. Cir.)

• June 13, 2019 - EPA withdrew the Regulatory Interpretation

- EPA letter to DEQ

- EPA agreed to “post disclaimer” to ADI

»


Lessons:

• Need to monitor regulatory developments

• Example of how Regulators and Regulated Industry can work together to resolve common concerns

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Clean Power Plan:

• Published in the Federal Register on October 23, 2015

• Purpose was to reduce CO2 emissions from existing power plants

- BSER considered on-site and off-site measures (3 building blocks) to set National CO2 emission standards

- State specific reduction targets

• BSER based (in part) on “Outside the fenceline” measures

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CLEAN POWER PLAN/AFFORDABLE CLEAN ENERGY RULE

Clean Power Plan:

• Lawsuits -

- State of West Virginia, et al. v. EPA, Case No. 15-1363 (consolidated with 38 other cases)(D.C. Cir.)

- State of North Dakota v. EPA, Case Nos. 15-1363 and 17-1014 (consolidated with 16 other cases)(D.C. Cir.)

»


States Participating in Clean Power States Participating in Litigation Consolidated Petitions: West Virginia et al. v. EPA et al., D.C. Circuit No. 15-1363

Clean Power Plan (Cont.):

• February 9, 2016 - SCOTUS stay

- Stayed implementation/enforcement of CPP until legality resolved

- First time SCOTUS stayed a matter pending before the D.C. Circuit

- Considerations - “likelihood of success on the merits” and “irreparable harm”

• September 27, 2016 - D.C. Circuit held en banc oral argument

»


Clean Power Plan (Cont.):

• D.C. Circuit stay – Court of Appeals stayed the case on April 28, 2017, based on current administration’s intent to replace CPP

- Executive Order 13783 – March 28, 2017

Specifically directed EPA to review and initiate reconsideration proceedings to “suspend, revise, or rescind” the CPP “as appropriate and consistent with law.”

- Federal Register Notice – March 28, 2017

Initiating review of CPP


Affordable Clean Energy Rule:

• Published - Federal Register on July 8, 2019 (84 Fed.Reg. 32520)

• Effective - September 6, 2019

• Allows States to establish GHG emission standards using BSERmeasures limited to on-site heat-rate improvements for existing coal-fired power plants

- No off-site measures required or considered


Affordable Clean Energy Rule (Cont.):

• CPP Lawsuits Dismissed - D.C. Circuit dismissed CPP challenges as moot on September 17, 2019

• ACE Rule lawsuits status -

- Deadline to Challenge – September 6, 2019

- Numerous lawsuits filed

• Legal debate – Legal challenges for both CPP and ACE Rule center on interpretation of BSER

- Precedent on scope of EPA authority under§111(d)?

• 2020 Presidential Election

• Continued Regulatory Uncertainty


One National Program Rule -

• Promulgated - EPA/NHTSA - September 19, 2019

• Purpose – Provide nationwide uniform fuel economy and GHG

emission standards for automobile and light duty trucks

Federal Preemption -

• When State law and Federal law conflict, Federal law preempts state

law due to the Supremacy Clause (U.S. Const. art. VI., § 2)

CALIFORNIA FUEL STANDARD

Statutory Provisions –

• Clean Air Act § 209(a) provides:

No State . . . shall adopt or attempt to enforce any standard relating to the control

of emissions from new motor vehicles or new motor vehicle engines . . . .

• Statute authorizing DOT to establish average fuel economy standards (49 U.S.C. § 32919(a)) provides:

When an average fuel economy standard prescribed under this chapter is in effect, ...

a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles . . . .


Authority to Grant Waiver –

• Clean Air Act § 209(b)(1) provides:

The Administrator shall . . . waive application of this section to any State which has adopted standards . . . for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards. No such waiver shall be granted if the Administrator finds that –

A. the determination of the State is arbitrary and capricious,

B. such State does not need such State standards to meet compelling and extraordinary conditions, or

C. such State standards and accompanying enforcement procedures are not consistent with section 7521(a) of this title.


EPA Action on California Requests for Waivers (GHGs) –

• March 6, 2008 – Request DENIED

- Bush EPA denied California’s request for a waiver of CAA preemption for

California’s GHG emission standards for MY 2009-2016 vehicles

▪ Basis – California did not meet standard regarding compelling and extraordinary

conditions

• July 8, 2009 – Previous denial reversed, request GRANTED

- Obama EPA withdrew previous administration’s denial

• January 9, 2013 – Request GRANTED

- Obama EPA granted CARB’s request for waiver to enforce its Advanced Clean Car program regulations (GHG/ZEV standards for MY 2021-2025).


EPA Action on California Requests for Waivers (GHGs)(cont.) –

• September 19, 2019 – Previous approval withdrawn, request DENIED

- Trump EPA withdrew waiver granted by Obama EPA for MY 2021-2025 GHG/ZEV standards

▪ Avoid patchwork fuel economy requirements

▪ Not compelling and extraordinary conditions

- Two Actions

▪ Withdrew California’s existing waiver for GHG emission standards; and

▪ Finalized NHTSA’s determination that EPCA preempts State GHG and ZEV programs, because they related to

fuel economy standards.

- No Action on Standard

▪ Effectively locks in MY 2020 levels until the Safer Affordable Fuel Efficient (“SAFE”) Vehicle Rule is released


EPA Action on California Requests for Waivers (GHGs)(cont.) –

• Basis for denial - EPA found that California did not demonstrate “compelling and extraordinary conditions”

- Did not address environmental problems particular or unique to California

- Did not address environmental problems caused by emissions particular or unique to California

- Standards will not provide any remedy particular or unique to California

- Waiver authority exists because of California’s uniquely difficult problems with Ozone, not GHGs

- Waiver authority does not exist to allow California to address national and global issues (climate change)


DOJ Probe –

• July 25, 2019 - CARB announced voluntary agreement with Ford, Honda,

BMW, and VW

- Sidesteps current efforts to roll back Obama-era GHG and economy standards

• September 2019 - U.S. DOJ sent information request to each Company

- Did Companies collude with CARB to reach a deal on lower standards and violate

anti-trust requirements?

• California Response –

- Claims retribution


Federal Highway Funds -

• September 24, 2019 - U.S. EPA letter to CARB

- Numerous unapprovable SIPs submitted by California

- Approximately 130 backlogged SIPs (1/3 of national number)

▪2008 Ozone Standard

- Noted statutory deadlines and possible statutory consequences

▪FIP Clock

▪Reduction in Federal highway funding.

“The Administrator may impose a prohibition, applicable to a nonattainment area, on the approval by the

Secretary of Transportation of any projects or the awarding by the Secretary of any grants . . . .” CAA §

179(b)(1)(A)


Federal Highway Funds (Cont.) –

• California’s Response

- Retaliation

- EPA’s Unclean Hands


Why Does It Matter?

• Political Reasons

• One National Program/One State dictating National policy

• Cooperative Federalism/States’ Rights


ContactRobert D. Singletary

(405) 234-3287

[email protected]

crowedunlevy.com

Oklahoma CityBraniff Building

324 North Robinson Avenue

405.235.7700

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321 South Boston Avenue

918.592.9800

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214.420.2163

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Documents

EFO 2019 Air Quality Regulatory Updatesenvirofdok.org/wp-content/uploads/2019/10/1.-EFO...2019/10/01 · Updates on three topics: •CEMS Regulatory Interpretation •Clean Power