CEQA Alert: Court of Appeal Rules that EIR Must Analyze Correlation Between Project’s Incremental Impact on Air Quality and Impact on Human Health

In Sierra Club v. County of Fresno (opinion filed 5/27/14; link below), California’s Fifth Appellate District held that the County violated the California Environmental Quality Act (CEQA) by failing to adequately analyze, disclose, and mitigate air quality impacts associated with the 942-acre Friant Ranch master planned community in north-central Fresno County. In part, the court held that the County’s Environmental Impact Report (EIR) was inadequate because it failed to analyze and disclose the impact that the project’s air emissions would have on human health.

Previously, in Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004), the same court held that the potential human health impacts associated with a project’s air emissions must be identified and analyzed in an EIR. According to the Sierra Club decision, in order to satisfy this mandate, an EIR must include an analysis of the correlation between a project’s adverse air quality impacts and the human health impacts specifically attributable to those project-related impacts. The County’s EIR listed the types of air pollutants that the project would generate, quantified those emissions, and included a general description of how each pollutant at issue affects human health. However, the EIR did not specifically analyze the impact on human health resulting from the change in air quality due to the project’s air emissions. The court held this analysis inadequate, but left it to the County’s discretion to select the proper methodology for correlating air emissions with human health impacts.

The Sierra Club court also held that several of the mitigation measures aimed at mitigating the Friant Ranch project’s air quality impacts were deficient because they were vague and unenforceable, conclusory in terms of the expected efficacy of the measures, and/or constituted impermissible deferred mitigation.

The court rejected petitioners’ other CEQA-based challenge, relating to the EIR’s discussion of the project’s wastewater impacts. The court concluded that the EIR adequately disclosed information relating to the amount of wastewater that was expected to be generated by the project and how that wastewater would be disposed of and/or recycled. The court also rejected petitioners’ claim that the project violated California’s Planning and Zoning Law due to alleged inconsistencies with the County’s General Plan policies.

-- Don Sobelman and Nicole Martin

The Sierra Club v. County of Fresno decision is available here.

For more information, contact Donald Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

D.C. Circuit Rejects Another Clean Air Act Challenge, Upholds Fine Particulate Standard

The D.C. Circuit added to federal air quality regulators’ winning streak on Friday, upholding a 2013 rule that revises air quality standards for fine particulate matter.

The rule lowers the National Ambient Air Quality Standard (NAAQS) for fine particulate matter from 15.0 µg/m³ to 12.0 µg/m³, and also tightens monitoring requirements for particulate air pollution. Writing for a unanimous court, Judge Kavanaugh cited the “great deference” given to EPA’s evaluation of “competing bodies of scientific research” in rejecting the National Association of Manufacturer’s challenge to the revised  standard. The court also upheld revisions to the NAAQS that eliminate the use of “spatial averaging” of monitoring data to demonstrate compliance with the standard and require additional monitoring locations near heavily traveled roads in large metropolitan areas, as well as rejecting several procedural challenges to the sufficiency of EPA’s notice of the proposed rule and its response to industry comments.

The court’s decision is the latest in a string of cases in the D.C. Circuit (previously discussed here and here) and Supreme Court (discussed here) upholding EPA Clean Air Act rules. The common theme running through the majority decisions in each of these cases is the court’s willingness to defer to EPA’s technical expertise in setting air quality and emissions standard under the Clean Air Act.  EPA has achieved these positive judicial outcomes notwithstanding criticism that EPA at times requests technical deference to mask imperfections in the rule making process and that EPA staff lacks adequate industry-specific experience to be entitled to such deference.

The biggest test of judicial deference to EPA expertise in the field of air quality regulation is still to come, when the Supreme Court issues its ruling on a challenge to EPA’s “tailoring rule” for the regulation of greenhouse gas emissions from power plants and large industrial facilities. As Morgan Gilhuly and I have previously discussed in our commentary on the Supreme Court’s EPA v. EME Homer City Generation decision, proponents of the federal regulation of greenhouse gases hope that that these recent decisions foreshadow the outcome of the tailoring rule case. A decision in that case, Utility Air Regulatory Group v. EPA, No. 12-1146, is anticipated before the end of the current term in June.

The challenge to the fine particulate NAAQS was brought in National Manufactures Association v. EPA, No. 13-1069.  The court’s opinion is available here. 

-- Chris Jensen

For more information, please contact Chris Jensen at cdj@bcltlaw.com or (415) 228-5411.

Supreme Court Upholds EPA Interstate Air Pollution Regulations

The Supreme Court has upheld EPA regulations requiring reductions in SO2, NOx, and fine particle emissions in 28 states stretching from Texas to New York.

The regulations, known as the “Cross-State Air Pollution Rule” or “Transport Rule,” are intended to reduce interstate transport of air pollutants, and were enacted under the “Good Neighbor Provision” of the Clean Air Act, which requires states implementing federal Clean Air Act requirements to enact measures to avoid contributing “significantly” to nonattainment of air quality standards in other states. EPA adopted Federal Implementation Plans (FIPs) to meet the Good Neighbor Provision’s requirements after it concluded that the measures adopted  in the 28 State Implementation Plans (SIPs) at issue were inadequate.

The majority opinion, authored by Justice Ginsburg, concludes that EPA acted within its discretion in adopting a federal rule for cross-border pollution, and reverses a D.C. Circuit decision vacating the rule. Citing the plain meaning of the Clean Air Act, the Court rejects the argument that EPA was required to provide the states with an opportunity to revise their SIPs before adopting federal regulations. The Court also upholds EPA’s decision to take cost into account in allocating emissions reductions among upwind states. The majority opinion was authored by Justice Ginsburg and joined by Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan. Justice Alito took no part in the consideration of the case. 

In his dissent, Justice Scalia (joined by Justice Thomas) argues that EPA abused its discretion by failing to give states an opportunity to modify their SIPs to meet the requirements of the Good Neighbor Provision before issuing federal implementation plans, and also took issue with EPA’s consideration of cost in setting emissions limits for upwind states, which he argues is prohibited by the plain language of the statute.

The lead case is EPA v. EME Homer City Generation, L.P., No. 12-1182.

-- Chris Jensen and Morgan Gilhuly

For more information, please contact Chris Jensen at cdj@bcltlaw.com, (415) 228-5411, or Morgan Gilhuly at rmg@bcltlaw.com, (415) 228-5460.

D.C. Circuit Upholds Most of Portland Cement MACT, Vacates “Unavoidable Malfunction” Defense

In a unanimous ruling issued earlier today, the D.C. Circuit largely upheld EPA regulations governing emissions of toxic air pollutants from Portland cement plants, while vacating a provision that created an affirmative defense for “unavoidable” equipment malfunctions.

The regulations, issued in February 2013, set limits for emissions of particulate matter, mercury, hydrochloric acid, and hydrocarbons from Portland cement manufacturing facilities. 

In rejecting several arguments advanced by environmental organizations challenging the regulations, the court held that EPA reasonably interpreted the Clean Air Act to allow the Agency to consider compliance costs in setting “beyond-the-floor” MACT limits for toxic air pollutants.  The court also rejected the argument that Section 112(d)(7) of the Clean Air Act should be interpreted as an anti-backsliding provision and held that EPA acted reasonably in extending the compliance date for all pollutants covered by the regulations when it revised the standard for particulate matter in the 2013 rule.

However, the court concluded that the creation of an affirmative defense for “unavoidable” equipment malfunctions exceeded EPA’s statutory authority.

The lead case is Natural Resources Defense Counsel v. EPA, Case No. 10-1371.

--Chris Jensen

For more information, contact Chris Jensen at cdj@bcltlaw.com, or (415) 228-5411.

D.C. Circuit Upholds Power Plant Mercury and Air Toxics Standards

The D.C. Circuit has upheld a 2012 EPA rule limiting air toxics emissions from coal- and oil-fired power plants.  The rule, commonly known as the Mercury and Air Toxics Standards, or “MATS,” requires new and existing coal- and oil-fired power plants to reduce emissions of mercury, arsenic, chromium, and other toxic air pollutants.

In a 2-1 decision, the D.C. Circuit rejected a variety of challenges from industry and environmental groups, including a challenge to EPA’s conclusion that it was not required to consider costs in determining whether regulation of electric utilities is “appropriate and necessary” under Clean Air Act § 112(n)(1)(A).  While acknowledging that cost of compliance plays an explicit role in setting “beyond-the-floor” MACT standards and indirectly influences the determination of MACT floors, the majority deferred to the EPA’s determination that it is reasonable to make the initial decision to list the utilities as sources of hazardous air pollutants without taking cost into consideration.

In his dissenting opinion, Judge Kavanaugh argued that the term “appropriate” necessarily implied that costs should be taken into account in making the listing decision, citing EPA’s own regulatory impact analysis, which estimated the cost of implementing the rule at $9.6 billion.

The lead case is White Stallion Energy Center, LLC v. U.S. Environmental Protection Agency, D.C. Circuit Case No. 12-1100.

-- Chris Jensen

For more information, please contact Chris Jensen at cdj@bcltlaw.com or (415) 228-5411.