Energy & Environmental Law Blog : Energy & Environmental Lawyer & Attorney : Vorys, Sater, Seymour and Pease Law Firm : Oil, Gas & Green Technology

The Supreme Court issued its ruling today in the long-awaited climate change nuisance suit.  The Court concluded that federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions.  In an 8-0 decision, the Court ruled that the Clean Air Act and rules authorized by the Act displace the federal common law cause of action and that there is no room for parallel action.  The U.S. Court of Appeals for the Second Circuit had previously ruled that eight states, New York City, and three environmental groups could proceed with lawsuits alleging under federal common law that the companies' carbon dioxide emissions constitute a public nuisance in contributing to global warming.  (Connecticut v. American Electric Power Co., 582 F.3d 309, 69 ERC 1385 (2d Cir. 2009)).  This Supreme Court decision overturns that ruling.

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According to the provisions of a proposed consent decree filed July 6 (Sierra Club v. Jackson, N.D. Cal., No. 09-152), USEPA will issue residual risk emissions standards to address the risk posed by hazardous air pollutants emitted by 28 industrial source categories that have already had MACT standards issued.

Under the terms of the proposed settlement, the agency will issue the residual risk limitations for 27 source categories by Oct. 31, 2013, and for portland cement by June of 2018. The agency can also make a determination that no residual risk standards are needed for a specific category. The first set of six categories have a September 14, 2010 date set for proposal.

The suit was filed in January 2009, alleging that USEPA failed to meet the Clean Air Act’s (CAA) statutory duty to review national emissions standards for hazardous air pollutants (NESHAPs) for 28 categories of industrial facilities to determine if their emissions still posed a residual public health risk after MACT standards were imposed.

Sections 112(d)(6) and 112(f)(2) of the CAA require EPA to review emissions limits for various industrial source categories every eight years, taking into account newly available technology. Because MACT standards are technology-based and not risk-based, the drafters of the CAA were concerned that there might be a remaining risk even after the latest in technology was installed on HAP sources. In addition, they wanted to account for improvements in technology over time.

The following source categories are covered by the proposed agreement:

• aerospace manufacturing and rework facilities,
• chromium electroplating and anodizing,
• ferroalloy production,
• flexible polyurethane foam production,
• polycarbonate production,
• acrylic and modacrylic fibers production,
• marine vessel loading operations,
• mineral wool production,
• off-site waste recovery operations,
• pesticide active ingredient production,
• pharmaceuticals production,
• phosphoric acid,
• phosphate fertilizers,
• polyether polyols production,
• polymers and resins I,
• polymers and resins III,
• polymers and resins IV,
• portland cement manufacturing,
• primary aluminum,
• primary lead smelting,
• printing and publishing,
• pulp and paper production,
• secondary aluminum,
• secondary lead smelting,
• shipbuilding and ship repair,
• steel pickling process,
• wood furniture manufacturing, and
• wool fiberglass manufacturing.
 

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The United Stated District Court for the Southern District of Ohio ruled on February 2, 2010 that the Ohio EPA was in violation of the Clean Air Act by improperly exempting from regulation businesses that emitted less than 10 tons per year of certain air pollutants.  A copy of the case can be found here.

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Climate change is not the end-all-be-all of regulating our air, says EPA. Yesterday, the EPA announced a proposed rule that will change the primary National Ambient Air Quality Standards for sulfur dioxide.  This rule would eliminate the current 24-hour and annual standards and replace them with a new, more stringent, one-hour standard of between 50 and 100 parts per billion (ppb).  EPA is also proposing changes to its monitoring and reporting requirements that may require more reporting for facilities surrounding urban areas and more frequent notification to the public of short term SO2 levels. A public hearing will be held in Atlanta on January 5, 2010 and a final rule is to be expected by June 2, 20010

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