Survey of Pending Clean Air Act Cases: Arkansas Environmental Federation Convention Presentation

I undertook a presentation at the Arkansas Environmental Federation Convention and Trade Show in Hot Springs, Arkansas, on October 6th titled:

Survey of Pending Clean Air Act Cases (“Presentation”)

The Presentation addressed:

• Judicial/Administrative Decisions/Actions
• Enforcement/Citizen Suit Actions Filed/Pending
• Consent Administrative Orders

The Presentation addressed:

• West Virginia v. EPA, 142 S.Ct. 2587 (2022)(discussing the challenge to the Obama Clean Power Plan and the ramifications):
  • EPA agency power if there is a “major question” requires it and other federal agencies to base their regulations in clear Congressional statutory language
  • Limits agency deference if there is economic and political importance
  • EPA authority in future rules will be subject to a judicial precedent disallowing overreach (whatever that is?)
  • When reviewing an agency’s claim of extraordinary power to regulate issues of national importance:
    • Does agency action indicate a major question?
    • If so, where in the statute is this power provided?
• Clean Air Act National Ambient Air Quality Standards (noting citizen suits driving NAAQS issues)
• Regional Haze (developments)
  • Issues that are debated
    • How much do states have to depart from EPA’s very detailed BART requirement?
    • What reasonable further progress does the Clean Air Act require, such as: visibility, reducing emissions?
    • What discretion or flexibility will states be given in determining what progress is reasonable for the second implementation period?
    • EPA/Arkansas and other states moving on this issue.
• Startup, Shut Down, Malfunction
  • State Implementation Plans
  • Section 111 New Source Performance Standards
  • Title V
• Ozone Exceptional Events Rule (discussing Bharv Regan which upheld EPA’s application of 2016 Exceptional Events Rule to exclude six monitored exceedances of the ozone NAAQS in the Phoenix area)
• EPA Clean Air Act Enforcement (noting various enforcement issues including stationary engines)
• Arkansas Air Enforcement (identifies the various types of violations cited by Arkansas Department of Energy & Environment – Division of Environmental Quality in 2021-2022)
• Federal Clean Air Act Criminal Enforcement (recent federal examples)
• Coal-Fired Power Plant/Mine/Common Control (discussing Voigt v. U.S. Environmental Protection Agency aggregate issue)
• Federally Permitted Releases/CERCLA (discussing Clean Air Council v. United States Steel Corporation addressing whether a Clean Air Act permit notification qualifies)
• Environmental Justice Actions (discussing various environmental organizations’ petitions to EPA regarding state agencies)
• Title V Operating Permit Objections (discussing various issues in which EPA granted petitions over the last two years)

A copy of the slides can be downloaded here.