Healy Enviro Law Fall 2012.docx

4 too much federal control no under virginia v epa

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4. Too much federal control? No, under Virginia v. EPA , all the EPA can do is tell states how much they can reduce and not how to do it. a. Limit on the SIP : EPA cannot take away state discretion in how to meet the end goal (which EPA can set). 5. ’98 call leads to CAIR v. CAIR - the rule included a trading provision which gets it shot down in North Carolina v. EPA . 1. CAIR utilized the same definition of significant contributions (trigger standard and compliance standard). 2. But under the CAIR trading system, states could still “significantly contribute” if they just bought up credits. Thus, it doesn’t ensure that a state will actually decrease its significant contributions. vi. EPA comes back with CSAPR to conform to North Carolina holding, but CSAPR goes down in EME Homer : 1. CSAPR once again defines significant contributions the same way as before, but the EME Homer court says the some states may be regulated beyond “significant contributions” with the cost-based approach. 2. Court also says that states should lead, not the Feds; but this is inconsistent with Circuit precedent. vii. Acid Rain Program 1. Problem with acid rain is that it leaches heavy metals from the soil (sulfur generally comes from utility emissions). 2. 1990 Amendments added Title IV, Acid Rain Program (utilized cap and trade): 23
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a. Part I : reduce reductions of SO2 by ½ from 1980 baseline level from 111 power plants (the big dirties) identified in the act. i. Reductions may be achieved by use of credits. This is a market based system of reduction. b. Part II: federal emission standards required for NOx emissions from certain boilers that are existing sources. 3. One problem with trading, it may allow hotspots because the permits can go anywhere in the country (e.g. to upwind states). But Congress was ok with this because it wanted efficiency and decreased market costs. g. Regulation of Mobile Sources –Title II i. Quick facts: 1. The CAA has decreased some emissions, but this success has been offset by the increase in the number of cars since 1970. ii. Federal standards for new motor vehicles [§202(a)] 1. Applies to classes or categories of sources (similar to §111). 2. If NEW, the standards affect light duty passenger vehicles, light duty trucks and heavy duty trucks. 3. Nature of the standards : a. The Statute, §202 – The Admin is to promulgate standards which reflect the greatest degree of emission reduction achievable through the application of tech which the Admin determines will be available for the model year to which standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of the technology. b. Admin gets to project what the tech will be. Thus, get more leeway that the “adequately demonstrated” standard of §111.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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