The U.S. Supreme Court recently issued a ruling in a case focused on whether the USEPA through the Clean Air Act can regulate air pollution emitted in one state that may harm people in other states. See www.supremecourt.gov/opinions/13pdf/12-1182_bqm1.pdf. The CAA has a Good Neighbor Provision, prohibiting sources from emitting any air pollutant which would contribute significantly to the ability of downwind states to meet its NAAQS standards.

The Supreme Court ruled 6-2 that the USEPA interpreted the CAA properly when it designed and implemented the Cross-State Air Pollution Rule (CSAPR or the “Transport Rule”). This ruling overturned a decision from a D.C. Circuit court ruling in 2012.

The decision reinstates CSAPR, meaning that large sources of ozone precursors in upwind states will be subject to more stringent air pollution control requirements in the future. The ruling also states that the USEPA acted properly in issuing federal implementation plans (FIPs) for the rule, which was a main objection of the Circuit court.

However, it should be noted that the Supreme Court ruling did provide some restrictions of CSAPR, such as limiting control restrictions. The USEPA can only require an upwind state to reduce its emissions as it affects every downwind state to which it is linked up to either the amount needed to achieve attainment with applicable NAAQS or the point at which the upwind state is no longer contributing more than 1% of their air pollution problem. An upwind state that believes that restrictions in CSAPR or a FIP go beyond meeting one or the other limit can challenge the applicable rules.

The USEPA has not yet announced a timetable or how it will reinstate CSAPR. However, the overall takeaway of the Supreme Court decision is that large combustion sources – particularly coal-fired electric or other large plants – will be further regulated for emissions of pollutants, such as NOx, VOCs, and PM, that impact other states. Another type of source that could be regulated or more moderate-sized facilities that are located near and upwind of state borders. If monitors and/or dispersion modeling demonstrate that its emissions impact or risk the attainment status of downwind states, then they may be regulated, too. Therefore, it is important for any facility that has the potential to emit even moderate quantities of such compounds to assess their emissions and prepare for potentially controlling emissions even more than it already does.

CCES has the air pollution experts to determine your emissions of critical pollutants and determine whether these rates meet standards listed in current or proposed future rules, including performing impact analyses. We can perform technical portions of an analysis to determine your potential compliance status vis-à-vis CSAPR and other Air rules. We can determine various cost-effective strategies to comply comfortably (if necessary), as well as design monitoring systems to allow you to manage your compliance program in response to future changes. Contact us at karell@CCESworld.com or at 914-584-6720.