Healy Enviro Law Fall 2012.docx

I note after nrdc v train this third prong is not

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i. Note: After NRDC v. Train , this third prong is not important. Once the EPA finds that the pollutant has an adverse effect, the EPA is compelled to list it as a criteria pollutant (they have a ministerial duty). 2. Once a pollutant is listed at §108, EPA must define the NAAQS under §109. a. §109 defines 2 types of NAAQS: i. Primary Standards : protection of public health allowing an adequate margin of safety 1. Compliance date – 3 years 2. Primary stds have been way more important than the secondary standards. ii. Secondary standards : protection of public welfare against any known or anticipated adverse effects 1. Welfare is broadly defined in §302(h) to include impacts on environment, including plants and wildlife. 2. Compliance date - ASAP iii. Quick Summary of NAAQS Process: 1. Pollutant must first be listed as criteria pollutant. a. §108 defines when pollutant is criteria pollutant i. Pollutant may reasonably be anticipated to endanger public health or welfare . ii. Emitted from numerous or diverse sources . 2. Once criteria pollutant is listed under §108, EPA is required to define NAAQS under §109. Two types of NAAQS: 9
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a. Primary : standard needed to protect public health allowing an adequate margin of safety b. Secondary : standard need to protect welfare (broad) 3. Note: standards must be reviewed every 5 years and revised when appropriate. Courts view EPA has having lots of discretion in deciding whether revision is appropriate. a. Also, criteria pollutants are pretty much complete, CO 2 may be added. iv. Recent EPA activity regarding NAAQS 1. Pb – threshold standard was considerably lowered in 2008. 2. NOx – new 1-hr standard upheld in 2012, protects asthmatics 3. Ozone – established new standard in 2008. v. Cost Consideration and the NAAQS (no cost consideration allowed) 1. Whitman v. American Trucking (2001) a. SCOTUS said that EPA many not consider feasibility or costs of control in defining the NAAQS . b. Scalia applies clear statement rule . Congress knows how to apply cost considerations and have done so in other parts of the statute. The absence was intentional. vi. Is CO 2 a criteria pollutant? 1. It meets first 2 factors of §108, but if the 3 rd prong actually matters the EPA won’t regulate it (b/c it becomes discretionary). vii. Note – the NAAQS say nothing about implementation. They just set the standards; the SIPs define implementation. b. State Implementation Plans (SIPs) i. SIPs define state’s plan to attain NAAQS by the relevant attainment date. 1. Gives states lots of power. ii. SIPs provide for the “implementation, maintenance, and enforcement” of the NAAQS in each air quality control region within the state. iii. Process: 1. Adopted after notice and comment process 2. Written employing ACQRs with multiple regions in a state. a. Region is to be big enough to include major sources affection region’s air quality.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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