CLEAN AIR ACT History Originally enacted in 1963 but not significant Amendments made in 1970 which makes the CAA as we know it Why Response to inadequacy of nuisance law cross boarder pollution Purpose to protect and enhance the quality of the Nation s air resources so as to promote the public health and welfare and the productive capacity of its population Pollutants Regulated Criteria Pollutant o Conventional diverse sources able to control locally o Controlled by the National Ambient Air Quality Standard and State Implementation Plan o Types Carbon Monoxide Sulfur Dioxide Nitrogen Oxides lead Cross State Air Pollution Rule July 2011 o Struck down by DC Circuit Ozone VOC s and NOX aka smog Particulates Toxic Air Pollutants o Mercury asbestos cadmium Mercury Air toxic Rule December 2011 court challenges pending Any air pollutant which may reasonably be anticipated to endanger public health or welfare o Brings up a lot of questions o Green house gases Regulation of GHG s Can we regulate under the CAA o Yes it hurts people living on costs o No it was past in 1970 Background o Kyoto Protocol o Fail attempts at climate change legislation in Congress o Backlash against regulation now MA vs EPA Does EPA have the authority to regulate greenhouse gas emissions CO2 etc from motor vehicles under the Clean Air Act o Air pollutant Endanger to public heath or welfare SECTION 202 o The administration SHALL by regulation prescribe standards applicable to the emissions of any air pollutants from any class or class of new motor vehicles engines which in his judgment cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare Air Pollutant Definition Welfare Defined o Any air pollutant agent ot combination of such agents o All language referring to effects on welfare includes but is not limited to effects on WEATHER CLIMATE EPA Argues during the Bush o CAA does not authorize control of GHG Local vs global concentrations Not in the 1990 CAA amendments eve though climate change was will known Such an important issue Congress would have been explicit o Even if CAA provides authority there is uncertainty and we are not ready to regulate Decision o GHG are air pollution o CAA requires EPA to regulate if it makes an endangerment finding o EPA has offered no reasoned explanation for its REFUSAL to make an endangerment finding or a finding of no endangerment based on science o Policy Judgment do not relate to the endangerment standard in the CAA statues Uncertainty Economic effects Remand to EPA o Issue an endangerment finding OR explain why its not issuing an Endangerment Finding based on the wording of the statue Dissent time o Agency may choose to defer judgment until there is more certainty o Nothing in the statue require the agency to make a judgment at a certain Compared to Brown v Board of Education o Outlawed segregation in public education v recognizes seriousness of climate change o Both cases rejected argument that government should not act because potential social and economic consequences Response to Mass v EPA EPA s endangerment finding o GHG pollution may reasonably be anticipated to endanger public health or welfare via climate change Do no have to wait until harm occurs Likelihood of risk v severity of harm Effects on health AND welfare o Emissions of GHG from motor vehicles cause OR contribute to GHG pollution and thus to climate change Contribute is lower threshold than cause Does not require Significant contribution Doesn t have to show causation Significance Now it is being Regulated Why was the CAA necessary o In ability to get legislation passed CO2 as an criteria Air pollutant o Criteria means there would be a NAAQS for CO2 But even if emission were 0 they would still be out of attainment because eof global concentrations o Criteria have local sources and can be controlled locally GHG are global o EPA does not think this is the best way to regulate EPA Regulations o Tailpipe rule Standards for cars and light trucks jointly with Department of Transportation economy standards Only apply to the new cars o Timing Rule when mobile source regulation takes effects it triggers regulation of stationary source controls PSD preventions of significant detainment Title V o Tailoring Rule exempts certain smaller sources from regulation initially phased approach o Proposed schedule for GHG standards for new power plants Result o New power plant emissons limits o LOTS OF LOTS OF LAWSUTIS Coalition for Responsible Regulation v EPA 26 consolidated actions o 16 states opposed o 11 states for Challenges to o Endangerment finding o Tailpipe rule o Stationary source controls o Timing and Tailoring rule Mass v EPA was not decided Decision Upheld the EPA rules regarding GHG o Argument Scientific judgment on endangerment not policy discussion o Court Mass vs EPA Language of the statue cost benfit has nothing to do with endangerment o Scientific record is adequate o Review of existing science not require to re prove judicial deference to technical expertise of EPA precaution and prevention necessary but not require o Quanification of concentrations at which endangerment occurs o Language of the statue does not require quantification sliding scale lesser risk of greater harm or greater risk of lesser harm precaution o Aggregation of 6 pollutants o No standing no injury o Science Advisory Board SAB o Even if SAB should have reviewed no substantial likelihood decision would have changed if review had occurred o Denial of reconsideration o Some non peer reviewed literature allowed mistakes corrected or did not impact endangerment decision new studies considered o Tailpipe Rule o Require to act once an endangerment finding was made o Stationary source rule trigger for stationary source controls o Major stationary source emits major amounts of any air pollutant regulated under the CAA Includes criteria and non criteria pollutants such as GHGs Express purpose to the act is to protect against harms caused by greenhouse gages