Air & Waste Management Association

Transcription

1 Air & Waste Management Association April 20, 2016 EPA S New Ozone Standard: Facts, Myths and Legal Challenges 9/19/2016 1

2 Let s Start With Some Facts Original purpose of the ozone NAAQS: to reduce ozone due to deleterious effects on the lungs, especially due to increased incidence of asthma NAAQS for ozone is intended to reduce releases into ambient air of photochemically reactive substances: VOCs that react in the presence of sunlight to form ozone Ozone formation is more prevalent during the summer months 9/19/2016 2

3 More Facts Each authorized state was required to submit a State Implementation Plan (SIP) intended to meet the NAAQS. The NAAQS was intended to set a safe level for ozone concentrations. Southwest Ohio and Northern Kentucky, through their state SIPs, met the real time measurements for ozone concentrations necessary to be in attainment. EPA rejected the actual field data in favor of modeling data. A dispute ensued. After several years of debate and litigation, EPA agreed that real data was better than a model. 9/19/2016 3

4 Recent Facts Southwest Ohio met the now effective 2008 ozone standard of 75 ppb ozone. Other states were continuing to reduce ozone concentrations, with several states as of 2015 still awaiting EPA approval of their SIPs to meet the 2008 standard. Before completing approval of pending state SIPs for attainment of the 2008 standard, EPA promulgated a rule lowering the NAAQS from 75 ppb to 70 ppb. Lawsuits were filed against EPA. 9/19/2016 4

5 Data, Data, Data What does the data show? How much progress has been made since 1980? 9/19/2016 5

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8 Ohio Emission Trends (VOC) Thousands (Tons) Major Source Category Summary Annual VOC Emissions Electric Utility Coal Fuel Combustion Mobile Sources Industrial Fuel Combustion & Processes All Others 9/19/2016 8

9 Ohio Emission Trends (VOC) Annual Emissions (Tons) Source Category Electric Utility Coal Fuel Combustion 1,584 1,625 1,775 1,598 1,578 1,601 1,543 1,374 1,407 1,419 Mobile Sources 321, , , , , , , , , ,029 Industrial Fuel Combustion & Processes 345, , , , , , , , , ,451 All Others Total 668, , , , , , , , , ,121 Annual Emissions Change (Percent since 1999) Source Category Electric Utility Coal Fuel Combustion 0% 3% 12% 1% 0% 1% -3% -13% -11% -10% Mobile Sources 0% -7% -7% -20% -24% -29% -30% -33% -35% -38% Industrial Fuel Combustion & Processes 0% 3% -9% -8% -9% -9% -10% -10% -11% -43% All Others 0% 6% -11% 87% 66% 100% 59% 91% 142% 236% Total 0% -2% -8% -14% -16% -19% -20% -21% -23% -41% 9/19/2016 9

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12 Ozone and Asthma 9/19/

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26 U.S. Chamber of Commerce "Ohio leaders in government and business should have the chance to meet the existing ozone standards before the EPA mandates unnecessary and unattainable levels. William Kovacs, senior vice president of Environment, Technology & Regulatory Affairs for the U.S. Chamber of Commerce 9/19/

27 Ohio Black Chamber of Commerce Now is not the time for the EPA to move the goal posts by piling on more burdensome environmental regulations. Our communities need policies that encourage job growth and investment to ensure a full economic recovery." Ohio State Black Chamber of Commerce President and CEO Rafeal Underwood 9/19/

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29 Nonattainment Areas at 70 ppb 9/19/

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32 Economic Impacts State NERA Estimated Economic Impacts of 65 ppb Ozone Standard Gross State Product Lost Lost Jobs or Job Equivalents per year Total Compliance Cost Alabama $17 Billion 7,580 NA Arizona $7 Billion NA $5 Billion Arkansas $9 Billion 23,414 $17 Billion California $233 Billion 149,554 $106 Billion Colorado $16 Billion 10,525 $815 Million Connecticut $37 Billion 21,666 $22 Billion Delaware $13 Billion 7,928 $9 Billion Florida $25 Billion 22,838 NA Georgia $22 Billion 11,647 NA Idaho $4 Billion 3,436 NA Illinois $51 Billion 34,873 $9 Billion Indiana $24 Billion 17,070 $1 Billion Iowa $9 Billion 7,741 NA Kansas $32 Billion 45,501 $16 Billion Kentucky $21 Billion 13,605 $347 Million Lousiana $3 Billion 33,829 $43 Billion Maine $10 Billion 6,192 $5 Billion Maryland $62 Billion 42,306 $37 Billion Massachusetts $93 Billion 40,260 $37 Billion Michigan $17 Billion 20,052 $1 Billion Minnesota $18 Billion 10,959 NA Mississippi NA 13,076 $19 Billion Missouri $18 Billion 29,532 $9 Billion 9/19/2016 Montana $7 Billion 2,968 NA 32

33 Economic Impacts State NERA Estimated Economic Impacts of 65 ppb Ozone Standard Gross State Product Lost Lost Jobs or Job Equivalents per year Total Compliance Cost Nebraska $5 Billion 4,456 NA Nevada $19 Billion 5,846 $2 Billion New Hampshire $4 Billion 6,667 $3 Billion New Jersey $86 Billion 51,020 $52 Billion New Mexico $8 Billion 9,875 $5 Billion New York $160 Billion 95,040 $92 Billion North Carolina $42 Billion 13,457 NA North Dakota $3 Billion 1,779 NA Ohio $22 Billion 22,914 $840 Million Oklahoma $18 Billion 35,503 $35 Billion Oregon $8 Billion 5,863 NA Pennsylvania $78 Billion 88,604 $89 Billion Rhode Island $9 Billion 6,581 $5 Billion South Carolina $12 Billion 6,617 NA South Dakota NA 2,792 NA Tennessee $32 Billion 13,575 $6 Billion Texas $286 Billion 347,322 $376 Billion Utah $7 Billion 5,809 $86 Million Vermont $5 Billion 2,871 $2 Billion Virginia $69 Billion 39,087 $35 Billion Washington $16 Billion 9,753 NA West Virginia $17 Billion 10,658 $2 Billion Wisconsin $30 Billion 24,421 $10 Billion Wyoming $48 Billion 3,062 $213 Million 9/19/2016 Source: 33

34 What Could the New Ozone Standard Cost Kentucky? $18 billion Gross State Product loss from ,943 Lost Jobs per year $347 million in compliance costs $460 drop in average household consumption per year Source: Nat l Ass n of Mfg, Aug /19/

35 Position of Governor of Kentucky 9/19/

36 Letter from KY Governor to President 9/19/

37 Kentucky Chamber of Commerce 9/19/

38 KY Natural Resources Cabinet 9/19/

39 The 2008 Standard Has Not Been Fully Implemented 9/19/

40 Legal Challenges The Murray Energy Corp. v. E.P.A., Case No , (Consolidated with Case , , ), United States Court of Appeals for the District of Columbia Circuit. Consolidated legal challenge to EPA s Final Rule setting the Ozone NAAQS at 75 ppb Initial briefs were due April 22, 2016 Oral argument not likely to be scheduled until winter, /19/

41 Background Ozone Highlighted in Murray The high background ozone levels are partly due to non-manmade sources. Some of the causes for these non-manmade ozone sources are believed to be: 1. Lightning 2. Wildfires 3. Stratospheric intrusion 4. Some plants, such as pine trees, produce volatile organic compounds (VOCs), which may contribute to higher background ozone levels. 9/19/

42 Background Ozone Some of the ozone is caused by interstate transport of ozone or the international transport of ozone. API Comments on Background Ozone at pg ; National Mining Association Comments at pgs The Mountain West states contend that the US EPA failed to adequately consider background ozone levels when establishing the 70 ppb standard. 9/19/

43 Background Ozone Many areas in these states would be pushed into nonattainment based on these new standards due to the high levels of background ozone. Further, because the high background levels are caused by non-manmade sources, these states may not be able to implement any measures to remedy the high ozone levels. 9/19/

44 Who Will Win the Court Battle? The death of Justice Antonin Scalia is a game changer for this litigation. The challengers will have a difficult time overturning the EPA s ozone rule because of the substantial amount of deference the Court provides the EPA in its rulemaking authority. Scalia was prepared to lead a majority of the Court to reduce the amount of deference, which he considered to be unlawful delegation by Congress of its duty to make the laws. 9/19/

45 The Court Battle Mississippi v. EPA (2013) involved the EPA s 2008 Rule, which reduced the primary NAAQS for ozone to 75 ppb from 80 ppb. The D.C. Circuit Court of Appeals upheld the EPA s decision to reduce the standard to 75 ppb. The D.C. Circuit Court of Appeals stated that when it considers challenges to NAAQS, it will apply the same highly deferential standard of review that we use under the Administrative Procedure Act. 9/19/

46 The Court Battle The Court will set aside the [EPA s] determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. [W]e do not look at the decision as would a scientist, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality. 9/19/

47 The Court Battle D.C. Circuit Court of Appeals in Mississippi v. EPA: Provided EPA meets its obligation to explain and expose every step of its reasoning, the governmental and environmental petitioners have a heavy burden to show that the totality of the evidence required EPA to decide differently than it did. 9/19/

48 Legislative Challenge: HR 4775 Ozone Standards Implementation Act of 2016 Slowly phase in implementation of the 2008 and 2015 ozone standards, extending to 2025 the date for States to submit final designations for the 2015 ozone standards; Align construction permitting requirements under the phased in implementation schedule so that the 2015 permitting standards will not apply to construction permit applications until 2025; and Change the mandatory review of NAAQS from 5 to 10 years, while providing the EPA Administrator the discretion to issue revised standards earlier. 9/19/

49 HR 4775 While HR 4775 is likely to pass the Republican controlled House, it is DOA in the Senate Moreover, the current President will veto this legislation, and both Democratic candidates for President will do the same. 9/19/

50 Acknowledgments Dick Brewer: Duke Energy, for his thoughtful and diligent work with the Cincinnati Regional Chamber of Commerce Devin Parram, Taft attorney in Columbus, OH who provided hours of research 9/19/