Environmental Law — Clean Air Act

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U.S. Court of Appeals for the 7th Circuit

Civil

Environmental Law — Clean Air Act

Pre-1975 emissions remain in a state’s baseline while emissions from post-1975 construction count toward a state’s pollutant allowance.

“EPA’s is a sensible interpretation as well. The Council’s approach could produce two undesirable outcomes. Under one understanding of the Council’s view, the 1975 baseline would keep changing as old plants become ‘new.’ Every time a company modified a pre-1975 plant, all of the emissions that formerly were part of the baseline would now have to be counted against a state’s allowance. This would cause no end of trouble during the permitting process for all plants (and not only the pre-1975 plant with modifications), because the region’s baseline would be changing. Unless what was removed from the baseline were added to the allowance, other businesses could find themselves with no allowance to draw on. The other understanding of the Council’s view involves double counting a ‘new’ source’s emissions. Rather than moving all the pre-1975 emissions from the baseline, a modification could cause the pre-1975 emission to count against the state’s allowance and remain in the baseline. While this sounds strange, it is consistent with the Council’s position. Under either interpretation companies (and state regulators) would be inclined to reject physical or operational changes to pollution sources, even if those changes reduced pollution, lest all pre-1975 emissions count against the state’s allowance. The EPA’s approach avoids that result.”

“EPA presents a reasonable interpretation of an ambiguous statutory provision.”

Petition Denied.

12-3388 Clean Water Action Council of Northeastern Wisconsin, Inc., v. EPA

Petition for Review of an Order of the Environmental Protection Agency, Easterbrook, J.