United States

• Author: Eugene E. Smary and Scott Watson
• Pages: 299-327

CHAPTER 17

United States

EUGENE E. SMARY AND SCOTT WATSON

I. Introduction

This chapter provides a brief summary of U.S. environmental law. It is a

starting point for the interested practitioner or student. U.S. environmental

law is constantly evolving. Environmental statutes and regulations rarely

remain static, and even when they do, the law evolves through application

in specific cases. Accordingly, statements of general principles do not always

completely reflect the competing positions behind the often complex and

sometimes nuanced resolution of issues decided by agencies and courts. The

general framework set out in this chapter is only the first step. The reader is

encouraged to supplement study of this chapter with review of current ver-

sions of the statutes regulations and cases that put flesh on specific issues in

the skeleton outlined here.

II. Air and Climate Change

A. Air Pollution Control

At its core, the federal Clean Air Act (CAA) is intended to regulate the emis-

sion of pollutants into the ambient air in the United States.1 It is a madden-

ingly complex statute, with specificity rarely seen in legislative acts and

ostensibly clarified by perhaps the most voluminous set of regulations in the

Code of Federal Regulations.2 There are many important provisions in the

CAA, but at the highest level of generality the CAA understood as consist-

ing of four key parts: NAAQS, PSD, stationary source requirements, and

mobile source requirements.

The first key part of the Clean Air Act is the National Ambient Air Quality

Standards (NAAQS).3 The NAAQS guarantee that ambient air across the

United States is protective of public health and welfare.4 Primary NAAQS pro-

tect public health within a predetermined appropriate margin of safety.5 Sec-

ondary NAAQS protect public welfare.6 The pollutants subject to the NAAQS

are usually referred to as “criteria pollutants” because Congress directed EPA

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to establish the NAAQS after identifying and publishing air quality criteria for

the pollutants and their impact on public health and welfare. There are cur-

rently six criteria pollutants: ozone, particulate matter, carbon monoxide, nitro-

gen oxides, sulfur dioxide, and lead.7 Ground-level ozone is not emitted

directly but is formed through the interaction of VOCs, nitrous oxides, and

sunlight. Particulate matter is regulated in two standards, one for particulates

of 10 micrometers or less, and one for particulates of 2.5 micrometers or less.8

State governments are primarily responsible for attaining the NAAQS.

To that end, states must submit and implement a state implementation plan

(SIP) to attain the NAAQS as expeditiously as possible.9 States are generally

free to adopt whatever standard they choose to meet the NAAQS, but to

ensure that the NAAQS are eventually achieved throughout the country,

onerous standards apply to states with “nonattainment areas.”10 In this way,

EPA administers the CAA through its state counterparts.11

The second key part of the CAA is prevention of significant deterioration

(PSD).12 The PSD program protects areas of the country that are already in

compliance with the NAAQS. It is designed to prevent the air quality in

those so-called attainment areas from deteriorating to levels that would oth-

erwise be allowed under the NAAQS. PSD increments, which are the key to

the PSD program, represent the maximum allowable increase in the concen-

tration of criteria pollutants in attainment areas. Thus, the total allowed pol-

lution in an attainment area is not necessarily the NAAQS but is an increment

beyond a baseline established when the first major emitting facility is located

in the regulated area.13 The NAAQS remain a hard limit such that even if it

would otherwise be allowed by the increment, the emission of additional

criteria pollutants is prohibited if it will cause an exceedance of a NAAQS.14

Major new sources of air pollution in a PSD area must comply with special

permitting requirements, including the requirement to utilize the best avail-

able control technology (BACT).15

Nonattainment New Source Review is essentially the opposite side of the

PSD coin. New or modified major emitting facilities in attainment areas must

obtain a PSD permit and utilize BACT while not exceeding an increment or

NAAQS; major new or modified stationary sources in nonattainment areas

must, among other things, obtain a permit requiring the source to comply

with the lowest achievable emissions rate (LAER), and offset emissions by

obtaining permanent reductions in emissions from other sources in the

area.16 Given that areas are classified as attainment or nonattainment for

each of the six criteria pollutants, it is therefore possible that a particular

source could be required to obtain a PSD permit and comply with BACT for

some pollutants, and to comply with nonattainment’s LAER and offset

requirements for other pollutants.

The third key part of the CAA is the stationary source requirements. Title

V of the CAA requires every source regulated under the CAA to have a per-

mit.17 This includes, for example, major stationary sources, regulated hazard-

ous air pollutant sources, and sources subject to New Source Performance

Standards (NSPS). Title V permits contain enforceable emission limits and

require monitoring to demonstrate compliance.18

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