The Clean Air Act (CAA) continues to be at the center of several high-profile environmental policy debates. Under the CAA, the U.S. Environmental Protection Agency (EPA) is authorized to regulate air emissions from a variety of sources — both stationary and mobile. The extent and reach of this authority has been called into question from stakeholders and policymakers. Key to these debates have been questions surrounding the health impacts of new air quality standards, as well as the cost and effectiveness of technological solutions that are available to reduce emissions. A brief look at some of the key issues follows:

National Ambient Air Quality Standards

As part of the CAA, the EPA is required to revisit national ambient air quality standards and update them every five years based on current science to ensure public health is being protected. The criteria pollutants are ozone, carbon monoxide, nitrogen oxides, particulate matter, sulfur oxides and lead. These updates have resulted in more stringent standards among criteria pollutants and often cause new areas to fall into "non-attainment." Areas which receive such a designation are required to submit plans to the EPA which would reduce the pollution levels of the specific criteria pollutant to acceptable levels. The failure to comply risks losing federal highway funding and new permits could not be authorized.

Greenhouse Gases 

One of the most politically-charged CAA regulations has been those aimed at regulating greenhouse gas (GHG) emissions. The U.S. Supreme Court found that the EPA was required to determine whether public health is endangered by greenhouse gases. The EPA made that endangerment finding and has proceeded to regulate GHGs as a pollutant. The EPA first promulgated emissions standards for automobiles and large stationary sources. EPA is now moving forward with a proposal to reduce GHGs from new power plants, known as New Source Performance Standards (NSPS), and is expected to eventually regulate existing sources.

Other Major Regulatory Issues

The EPA is also addressing pollutants from power plants and other industrial facilities, including regulations to address cross-state air pollution as well as mercury and other air toxics. These regulations have been the subject of much Congressional debate over the EPA's authority under the CAA through policy riders and other legislative actions. Some examples follow below:

• Utility MACT — The EPA finalized regulations to reduce mercury and toxic air pollution from coal- and oil-fired power plants. The rule, referred to as "Utility MACT," has been the subject of much debate in Congress and the courts. Coal advocates have claimed the new regulation, as written, would preclude the use of coal given the state of emission control technology. In 2012, an effort to overturn the rule through the Congressional Review Act was defeated. The EPA announced it would reconsider the rule based on technical information and the courts have upheld the agency's ability to do so. This regulation will continue to see significant attention.
• Tier 4 Locomotive Emission Standards — Locomotives manufactured after 2015 will be subject to the EPA's most stringent emissions standards to date, referred to as Tier 4. The standard would require that all new diesel engines be equipped with advanced emissions-control technology to reduce emissions from particulate matter by 90 percent and nitrogen oxide emissions by 80 percent.
• Tier 3 Gasoline standards — EPA is expected to propose new regulations on the allowable sulfur content in gasoline. The extent of these regulations, referred to as Tier III, and their impacts are unclear. How these rules could impact corporate average fuel economy standards and the mandate to blend an increasing amount of renewable fuel in the transportation fuel pool is also unclear.

FaegreBD Consulting's energy and environment team has represented clients on complex CAA issues before Congress, the EPA and other relevant departments. We assist our clients in understanding the ramifications of federal regulations and devising a strategy to protect their underlying operations. Our work has included the development of legislative, regulatory and strategic communications strategies.

Additional examples of our experience include:

• Representing a range of clients, including large and small corporations, a nationally-recognized air quality agency and NGOs
• Working with clients to draft Congressional testimony and legislative language
• Analyzing and drafting regulatory comments for clients that have specific concerns with complex federal policies under the CAA
• Addressing cutting-edge legal statutory and regulatory issues, at both state and federal levels, relating to the capture and storage of carbon dioxide
• Drafting a new title to a major energy bill while simultaneously working with the EPA, Small Business Administration, the White House and media campaign to fortify our Congressional champions