D.C. Circuit Approves Use of CSAPR to Meet Regional HazeApril 27, 2018
On March 20, 2018, the D.C. Circuit Court of Appeals issued an opinion upholding the Obama EPA’s policy that compliance with the Cross State Air Pollution Rule (CSAPR) satisfies the Best Available Retrofit Technology (BART) requirement for SO2 and NOX under the Regional Haze Rule. Under the Regional Haze Rule, states must evaluate different measures that could help achieve “reasonable progress” toward a national goal of eliminating impairment in certain national parks. Further, states must assess and identify BART for a specified set of facilities.
However, the Regional Haze Rule allows states to adopt emissions trading programs or other alternative programs as long as the alternative provides greater reasonable progress towards improving visibility than BART. In June 2012, the Obama EPA issued a final rule finding that the CSAPR trading rule achieves “greater reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas than source-specific” BART. This is not the first time EPA allowed a trading program to satisfy BART. The Bush EPA held that CSAPR’s predecessor program, the Clean Air Interstate Rule (CAIR) satisfied BART requirements.
On September 29, 2017, shortly before oral argument in the case, EPA finalized a rule reaffirming its decision that CSAPR satisfies BART requirements in light of another D.C. Circuit opinion remanding certain CSAPR trading budgets. EPA concluded that “changes to CSAPR’s geographic scope resulting from the actions EPA has taken or expects to take in response to the D.C. Circuit’s remand do not affect the continued validity of participation in CSAPR as a BART alternative, because the changes in geographic scope would not have adversely affected the results of the air quality modeling analysis upon which the EPA based the 2012 determination.”
Both environmental groups and industry challenged EPA’s June 2012 rule. While the environmental groups challenged the determination that CSAPR satisfies BART, industry groups challenged the portion of the rule finding that states can no longer rely on CAIR as a BART alternative. The D.C. Circuit panel unanimously upheld the rule against all challenges. However, litigation over CSAPR as a BART alternative continues as environmental groups have challenged EPA’s September 2017 rule.