Clean Air Act Developments

February 28, 2001

Air Quality Standards

The United States Supreme Court yesterday ruled that the EPA has authority to set national ambient air standards without having to provide a cost-benefit analysis.  In Whitman v. American Trucking Assn., the Court determined that the language of the section of the Clean Air Act requiring standards to be set to protect the public health with an adequate margin of safety is clear and that cost considerations are not to be implied  or inferred based on other language in the statute.  The Court also found that EPA was not given "legislative power" in a manner that could be said to vest it unconstitutionally with uncontrolled discretion, because the Congress had provided an intelligible principle for EPA to follow respecting public health protection.  However, the Court held that the implementation policy for revised Ozone standards utilized by the EPA was flawed and would have to be reconsidered and revised, because EPA improperly chose not to apply important statutory language on ozone policy implementation.

In a divided decision of all judges on the District of Columbia Circuit Court of Appeals in 1999, the Court of Appeals had invalidated EPA’s air quality standard for ozone. The Court of Appeals majority found that the EPAs adoption of the rule lacked sufficiently objective standards for determining levels of protection for human health.

The full opinion of the Supreme Court is available from the USEPA  and Supreme Court web sites.

Enforcement of Major Source Rules
In a national press conference November 3, 1999, EPA and the Department of Justice announced a multi-state clean air enforcement case against electric utilities. The actions target 32 coal-fired power plants in 10 states from Florida to Ohio.
EPA indicated that when Congress passed the Clean Air Act in the 1970s, it reasonably thought these old coal-fired plants would be replaced by newer, cleaner technologies. So it exempted these plants from meeting the tougher standards applied to new facilities as long as these "grandfathered" power plants maintained the status quo.
EPA believes the companies were allowed to perform routine maintenance, but they were not allowed to make significant changes to the plant -- such as increased generating capacity, increased burning of coal, or modifications that prolonged the life of the plant -- without seeking permits and adding the best available pollution control devices. It alleges they went far beyond these permitted activities.
EPA charges the companies named in these actions spent hundreds of millions of dollars modifying these plants - increasing their life and increasing their emissions. And they allegedly did this without applying for required permits, without required public notice and without installing required pollution control technology.

For More Information Contact:

Harvey M. Sheldon, P.C.
150 North Wacker Drive, Suite 1500, Chicago, Illinois 60606
Tel: 312-357-6700
FAX: 312-357-6763