Existing Air Law Tools Give EPA Narrow Path on Tackling Climate

The EPA has an arsenal of air pollution options to work with to make a dent in carbon emissions following last month’s Supreme Court ruling, as long as the agency stays within stricter confines.

The Supreme Court in West Virginia v. EPA drew firm boundaries around the agency’s greenhouse gas authority when it quashed any hope for grid-wide regulatory schemes. And after Sen. Joe Manchin (D-W.Va) last week struck what could amount to a mortal blow to Democrats’ plans to tackle climate issues, President Joe Biden’s administration is faced with another layer of urgency to craft regulations that can stick.

Now, the Environmental Protection Agency will need to revisit well-trod areas of authority to move the dial on carbon mitigation, including through National Ambient Air Quality Standards, international pollution provisions, and waste cleanup rules. EPA Administrator Michael Regan laid out some of those options during the American Council on Renewable Energy’s policy forum in March.

Those avenues still stand after the ruling, according to National Association of Clean Air Agencies Executive Director Miles Keogh.

“Those tools—including things like NAAQS implementation, interstate pollution transport, coal waste remediation, reducing air toxics, and strengthening standards that protect our health—are all great and necessary, and they all need to be done on their own merits,” Keogh told Bloomberg Law.

The Biden administration is currently weighing more stringent rules on traveling smog pollution as well as tougher National Ambient Air Quality Standards for ozone and particulate matter, all of which will have some effect on greenhouse gas reductions, or “co-benefits.”

But it’s likely in EPA’s best interest to downplay carbon co-benefits of future rules to avoid further scrutiny, according to Keogh.

“With politics being what they are, it’ll be important for EPA to acknowledge that those greenhouse gas benefits are happening without making them into the reason why EPA has to take those actions,” Keogh said.

Air Rules

Some groups are still pushing for nationwide carbon air quality requirements. A 2009 petition from the the Center for Biological Diversity and 350.org asked the EPA to establish carbon as a criteria air pollutant, which would add it to the list of six others regulated under NAAQS.

That petition is still under examination by the agency. Former Acting Environmental Protection Agency Administrator Jane Nishida wrote in March 2021 that the previous EPA did not fully consider the groups’ request the first time.

Prior to last months court ruling the option seemed far-fetched to some observers, but it remains on the table.

“I think the listing of the criteria pollutants is fairly straightforward, it’s the implementation of the restrictions that accompany that that become quite difficult,” said Victor Flatt, a University of Houston energy law expert.

He added that setting a health-protective threshold for carbon to regulate and then managing potentially an entire country’s worth of state emission mitigation plans, called State Implementation Plans, is a heavy and time-consuming lift to a climate problem that is rapidly worsening.

Those potential problems don’t make NAAQS a “very helpful concept,” Schiff Hardin LLP partner Jane Montgomery said. She finds international pollution provisions of the Clean Air Act more viable.

Section 115 of the Clean Air Act would require EPA to govern traveling pollution through cooperation with countries potentially affected by the wandering emissions. The EPA could use section 115 to guide states where air pollution originates to update the State Implementation Plans for stricter enforcement of emissions.

Some observers find section 115 too adventurous to pursue given the West Virginia v. EPA ruling, but Montgomery said “it’s less problematic than anything else in the Clean Air Act” and could make use of international climate agreements.

“I think it’s a good approach—I would like to see that happen because it actually kind of fits where the world is right now with the Paris accord,” Montgomery said.

Coal Options

With few new coal plants opening up and coal closures happening across the U.S., federal cleanup options outside the Clean Air Act are also available to the agency.

Establishing coal ash as a hazardous waste and regulating it under the Resource Conservation and Recovery Act could have a big impact on coal phaseout by making operations more expensive, Flatt said.

“We already see how coal plants are just teetering on the edge,” Flatt said. “Any little push is going to get more closures, so that’s the other way to kind of go about it.”

When it comes to coal, “the lowest-hanging fruit” of major carbon pollution, EPA could drive closures with its greenhouse gas authority intact, according to University of South Carolina law professor Nathan Richardson, who spoke at a July 5 Resources for the Future webinar on the Supreme Court’s ruling.

“But to do much more than that, to be creative, to do the kind of cross-sector economy wide things that everyone acknowledges are required to make a meaningful dent in the structure of the economy and our emissions, this decision—the subtext said—that’s really hard,” he said at the talk.

The options available should temper any fatalistic predictions following West Virginia v. EPA, but court watchers shouldn’t “miss the forest for the trees” by ignoring even greater, far-reaching limits on what EPA can do with such a strong ruling limiting agency authority write large, Richardson said.

“We may not see those in the form of future regulations that are rejected by the court, but instead by regulations that the EPA never writes,” Richardson said. “There’s a shadow effect here.”