Clean Air Act

News & Analysis as of

Recent Cases on Clean Air Act Preemption of Common Law Torts Upend Conventional Wisdom

Two recent appellate-level decisions allowing state common law tort claims against an intrastate emitting source to avoid Clean Air Act (CAA) preemption have surprised many CAA litigators. The outcome in both Bell v....more

EPA Seeks Additional Comment on NPDES Electronic Reporting Rule, and Other Recent CWA Developments

EPA Seeks Additional Comment On NPDES Electronic Reporting Rule: On December 1, 2014, the U.S. Environmental Protection Agency (EPA) requested additional comment on the proposed National Pollutant Discharge Elimination System...more

Transportation Conformity Form Over Substance

A few determined environmental advocates have attempted for years to use the Clean Air Act’s strict transportation conformity rules to tie up planned highway improvements. For the most part, courts have rebuffed those...more

Environmental Issues and The Republican Majority

Expectations are running high among some that the incoming Republican majority in both Houses of Congress will act to change or eliminate various environmental regulations and statutory provisions that they claim harm the...more

Three Obstacles to EPA’s O3 Rule: Industry Opposition, Implementation, and Congressional Oversight

The U.S. Environmental Protection Agency (EPA) recently proposed revising the national air quality standard for ozone, the key pollutant in smog and regional haze. EPA acknowledges that the rule will cost billions of dollars...more

WVDEP Files Proposed Legislative Rule Implementing AST Act

In the latest development relating to West Virginia’s new aboveground storage tank (“AST”) legislation, on December 22, 2014, the West Virginia Department of Environmental Protection (“WVDEP”) filed with the West Virginia...more

EPA Proposes Update to National Ambient Air Quality Standards for Ground-Level Ozone

On November 25, 2014, the Environmental Protection Agency (“EPA”) proposed to reduce both the primary and secondary National Ambient Air Quality Standards (“NAAQS”) for ground-level ozone from 75 parts per billion (“ppb”) to...more

EPA Proposes to Retain Current Lead NAAQS

Environmental Protection Agency (EPA) Administrator Gina McCarthy on December 19, 2014, signed a proposed rule that would retain, without revision, the national ambient air quality standards (NAAQS) for lead of 0.15...more

Supreme Court's Petition Denial in Clean Air Act Pre-emption Case Reinforces Threat From Common Law Claims

The United States Supreme Court denied a petition for certiorari earlier this month after the Iowa Supreme Court held in June that the plaintiffs' nuisance claims were not pre-empted by the Clean Air Act (CAA) in Freeman v....more

More Regulatory Stability and Incentives for Biogas and Biomass Projects

Last month, the U.S. Environmental Protection Agency (EPA) announced a host of new incentives to encourage the use of fuels derived from biomass—including biogas that replaces traditional natural gas in the form of compressed...more

Proof and Causation Matter: District Court Declines to Penalize ExxonMobil in Texas Citizen Suit

On Wednesday, Judge David Hittner, of the District Court for the Southern District of Texas, in a decision long enough to require two separate pdfs, declined to impose an injunction or penalties (plaintiffs sought...more

Aviation & Aerospace and Surface Transportation Quarterly Newsletter

In This Issue: - Update on Developments in California Drone Law - One Community Gets Relief from Aircraft Noise - California Once Again Relinquishes Clean Air Act Enforcement Responsibility to the...more

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the definition of a “source” under section 111(d) of the Clean Air Act. It has also...more

Salem power plant wins market deferral

Federal regulators have granted a request by the developer of a power plant in Salem, Massachusetts, to defer its commitment to provide power to the New England market. The process reflects challenges inherent to developing...more

The Space Between Draft and Final

EPA has a lot to consider in finalizing its rule directing states to create programs to reduce greenhouse gas (GHG) emissions from fossil fuel fired electric generating units. The public comment period on a recently proposed...more

EPA Issues Proposal for More Stringent Ozone Standard … Get Your Project Applications in ASAP

While many Americans were already on the road toward their Thanksgiving destination on November 26, driving cars emitting hydrocarbons and nitrogen oxides that form ozone in the atmosphere, the United States Environmental...more

California Environmental Law and Policy Update - November 2014 #4

Environmental and Policy Focus: Coastal California residents using far less water - Associated Press - Nov 4: Residents in coastal communities use far less water than their inland counterparts, but still find ways to...more

OMB Releases Fall 2014 Regulatory Agenda

The White House Office of Management and Budget’s Office of Information and Regulatory Affairs has released its semi-annual Unified Regulatory Agenda and Regulatory Plan for Fall 2014, covering more than 60 Federal...more

EPA Proposes Stricter Ozone NAAQS

On November 25, 2014, EPA proposed to strengthen the National Ambient Air Quality Standard (NAAQS) for ground-level ozone. The rule is available online and should be published soon in the Federal Register....more

EPA Does Not Have a Nondiscretionary Duty to Revise PSD Regulations When It Amends a NAAQS

On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that...more

EPA Reverses Course on Malfunctions

EPA proposes eliminating all startup, shutdown and malfunction affirmative defense provisions from SIPS. On September 17, 2014, the United States Environmental Protection Agency (EPA) issued a supplemental notice of...more

Kentucky Federal Court Holds Tort Claims Not Preempted by Clean Air Act

State common law tort claims based on air emissions from a power plant are not preempted by the federal Clean Air Act (CAA), according to the U.S. District Court for the Western District of Kentucky. The court agreed to...more

Preserve and Protect: Sarbanes-Oxley Meets Environmental Law

On November 5, 2014, the United States Supreme Court will address the scope of the Sarbanes-Oxley “anti-shredding” law. The interpretation of this somewhat mundane provision may significantly affect how environmental data and...more

Blue vs. Grey Over Green in Murray v. EPA; Cross-Border Rule Goes Ahead

As I posted earlier, in Murray, et al v. EPA , plaintiff Murray Energy Corporation seeks to enjoin EPA's Clean Power Plan rule even before it has been issued as a Final Rule. The Clean Power Plan proposes to regulate the...more

California Environmental Law and Policy Update - October 2014 #4

Environmental and Policy Focus - Groups sue EPA over failure to reduce air pollution: KPCC - Oct 17: Environmental groups have filed a lawsuit in U.S. District Court in San Francisco against the U.S. Environmental...more

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