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2014 Jan. 1: Wood Smoke Activist Newsletter Jan. 2014

2014 Jan. 1: Wood Smoke Activist Newsletter Jan. 2014

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Announcement: Jan. 8, 2014, 2-3 PM E.S.Time, Mom’s Clean Air Task Force Mtg. link

There’s a virtual townhall with Gina McCarthy and Janet McCabe on January 8, 2014, from 2 to 3 est.

https://www.facebook.com/events/179785505552076/?ref_newsfeed_story_type=regular&source=1

It’s sponsored by Mom’s Clean Air Force, which is funded by EDF.  Since it’s focused on air issues, it’s a great opportunity to post questions/comments about the wood smoke problem and the upcoming NSPS.  It sounds like it’s via Twitter, so I have no idea how that works. But, it’s an opportunity for us

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2013 Dec. 24: EPA violations report form (for wood smoke complaint report)

Below is a link to an EPA website to file a notice of environmental violations.  Can you  post a link to this on your website encouraging everyone with a hydronic heater complaint to file with the EPA.  This will get us more on the radar.
Suggested Post:

FILE HYDRONIC HEATER COMPLAINTS WITH EPA – detail pollution, health impacts, and State and Local Agency action or lack thereof impacting your family

Link to EPA Form:

Key parts to form  and example of information to include:
Characterized incident as:Intent:         Intentional

Type:           Release

Media:         Air

Entity:          Individual

 

Description of incident or hazard:  High amounts of PM 2.5, PAHs,  and VOC’s from a hydronic wood furnace located at _______________. (Briefly detail actions of any public agencies contacted in your State. )This is affecting (detail your household —- a family with young children, elderly or other family members with existing or new health issues and detail any visits to doctors or medications issued as a result of the ground level pollution).   Our State agency or EPA  should enforce the Clean Air Act. We are reviewing our options to include the FBI as to why there is no enforcement or relief for our family. This is criminal!

 

Specific Directions:  Hydronic heater is located at ___________________.

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2013 Dec. 15: WI Lacrosse: OWBs pose risk

Increased exposure to outdoor wood-fired boilers could be dangerous to human health. 

According to the Wisconsin Department of Health Services, people who breathe wood smoke and creosote on a regular basis have the potential to develop respiratory and cardiovascular problems.

Particulate matter, a toxic air pollutant found in wood smoke, can seep into the lungs and cause eye and nose irritation, headache, wheezing, coughing and difficulty breathing.

People who are diagnosed with heart disease, asthma, emphysema or other respiratory diseases are at a higher risk than those without.  Senior citizens and young children are also more susceptible.

Whether a person will develop health problems from outdoor wood-fired boilers depends on how often he or she is exposed to the smoke.

 

David Liebl, pollution prevention specialist with UW-Cooperative Extension, said pollution can be especially bad in areas that have high ridges and low valleys. Smoke generated by outdoor wood-fired boilers is stronger than other kinds of smoke because the boiler maintains slower, cooler fires.

Outdoor wood-fired boilers can also be installed in poor locations and therefore cause more smoke to enter a home.

According to the U.S. Energy Information Admini-stration, about 9 percent ofWisconsin homes use wood to heat their home. According to the American Census Bureau, 18 percent ofVernon County and 17 percent of Crawford County households rely on wood to heat their homes.

“The main problem with wood smoke exposure is that wood smoke travels very easily into homes,” he said. “It can have a significant impact of people nearby.”

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2013 Dec. 15: CT: Wood Smoke becomes the New Second Hand Smoke

We send the article below out about wood-burning problems because wood-burning emissions have become the issue that Environment and Human Health, Inc. hears the most complaints. In Connecticut the DEEP has received hundreds of wood smoke complaints. Wood smoke has become the new second hand smoke.
 
Wood smoke has the same components as cigarette smoke – and yet it is now almost completely unregulated and people are suffering from their neighbor’s wood smoke coming into their homes — and this is happening all over the country.  We hear daily complaints from people from Texas to Maine – and all are suffering – and all find they are at a lost for what to do to get relief.
 
6 states, including CT, have sued EPA for stricter wood smoke emission standards – as well as 5 non-profits – of which we are one –  along with American lung, EDF, Earth Justice, and the PA Clean Air  Council.
 
Health protective wood-smoke standards must be set by the EPA and by states – or we are going to have a lot of chronically ill people around this country. The question is —- in this country are we going to allow people to live in such a way as to knowingly make their neighbors sick – and have government – at all levels – sit by and allow it?
                        Nancy Alderman, President
                        Environment and Human Health, Inc.
 
 Maine Sunday Telegram, Portland, Maine  Sunday, December 15, 2013
 
Tougher pollution limits for wood stoves might just backfire
Manufacturers say new rules will drive up costs and spook buyers who would otherwise upgrade older, dirtier units.
 
By Tux Turkel tturkel@pressherald.com
Staff Writer
 
GORHAM – A low fire was burning in the Jotul F45 Greenville, but something was missing: smoke.
click image to enlarge
 
This new wood stove in the research and development lab here at Jotul North America was venting into an uncapped metal flue, allowing a visible check of just how clean a modern stove can be.
 
Using seasoned hardwood, the F45 Greenville can burn up to eight hours and heat a 1,600-square-foot house, but send out only 2.31 grams per hour of fine-particle pollution. That’s less than a third of the maximum emissions allowed by the federal government for similar stoves, making it one of the cleanest-burning, mass-produced stoves on the market.
 
But the government says that’s not good enough. Twenty-six years have passed since the Environmental Protection Agency set emission standards for wood heaters. This winter, the agency is putting the final touches on a far-reaching and controversial update. It would require wood-stove makers to slash particulate emissions to 1.3 grams per hour in 2019.
 
Some stove makers say this is the wrong approach. Jotul estimates that it will cost nearly $1 million to re-engineer its stoves to meet the 2019 standards and could drive up the cost of a stove by 25 percent. The fix will mean adding catalytic combustion chambers. That technology can reduce emissions, but Jotul says such burners could make it harder for owners to maintain their stoves.
 
Jotul also points out that there are at least 7 million older-technology stoves kicking around the country, while retailers sold fewer than 74,000 new units last year. A well-built wood stove lasts for generations. So even if the federal government doubles down on the regulations, switching out all the old-style stoves with cleaner models will take decades.
 
“It doesn’t matter whether we get to zero grams per hour until we get the dirty stoves out of circulation,” said Bret Watson, president of Jotul North America.
 
Watson has another solution: a wood stove change-out program. Last summer, dealers offered $300 credits to people who exchanged their old stove for a new Jotul, which sells for between $1,000 and $3,000. Buyers also got a $300 federal rebate on top of Jotul’s credit.
 
The program was the nation’s first stove change-out led by a manufacturer. It captured 1,406 old stoves, 146 of them in Maine.
 
The promotion was so successful that Jotul plans to do it again next summer. The federal funds will expire, but a $250 Efficiency Maine rebate for efficient wood stoves will help.
 
The program has won the endorsement of the Northeast chapter of the American Lung Association, which received $10 for every old stove turned in. The group supports stricter emissions standards, but agrees with Jotul that change-outs hold greater promise for improving air quality in the near term.
 
The new EPA standards also will cover outdoor wood boilers, furnaces and masonry heaters. The draft rules are expected to be issued soon, followed by a 90-day comment period. Public hearings could be held next spring in Boston and Seattle.
 
It’s clear the agency is under pressure to enact the most stringent standards possible.
 
Seven states that include Massachusetts and Connecticut – but not Maine – have filed a notice to sue the EPA for failing to revise its outdated air pollution standards for residential wood heat. Their top concern is outdoor wood boilers, but they are also concerned about wood stoves.
 
Advocacy groups also are weighing in.
 
Jotul’s program is commendable, according to the Alliance for Green Heat, a Maryland-based group that promotes clean wood stoves, but the impact of change-out programs is overestimated.
 
Change-outs typically underperform when they are open to everyone and don’t target the worst polluters, according to John Ackerly, the group’s president. And in areas where other residents can still install old secondhand stoves, the clean-air benefits of the new stoves are canceled out.
 
Most stove change-outs also fail to get at the other half of the problem – burning wet, unseasoned wood and setting low, smoldering fires. Some experts now wonder if a $150 rebate to build a wood shed to keep wood dry could improve air quality as much as handing out $1,000 for a new stove, Ackerly said.
 
TRADITION VERSUS AIR QUALITY
 
The outcome of this debate is important to Maine.
 
Heating with wood is a cherished and thrifty tradition that has been making a comeback in Maine. A greater percentage of homes use wood as their primary heat source – 14 percent – than any state other than Vermont, according to U.S. Census figures. An estimated 50 percent of Maine homes also use wood as a supplemental heat source.
 
The trend is good for cutting expensive oil bills, but not for air quality. It is an inconvenient truth, but typical wood stoves churn out far more of the pollution that aggravates asthma and other respiratory conditions than the oil and gas heating systems they’re meant to supplement or replace.
 
Americans began buying wood stoves in the mid-1970s, after high oil prices triggered the first “energy crisis.” Some of these stoves belched out more than 40 grams per hour of fine particles, as much smoke as a vintage diesel bus.
 
Responding to public health complaints, the EPA set emission standards in 1988 for new, non-catalytic stoves at 7.5 grams per hour. In 1995, Washington state enacted its own standard of 4.5 grams, which has become a de facto benchmark for new wood stoves sold today in the United States. Most pellet stoves, which have become popular in Maine in recent years, also come in below the Washington state standard.
 
A STRICTER STANDARD HAS LIMITS
 
The stove line sold by Jotul North America averages 3.7 grams/hour. The factory here is Maine’s only wood stove manufacturer. It is the subsidiary of Norwegian-based Jotul Group, the iconic Scandinavian stove maker. The Gorham plant employs 75 people who assemble and fabricate units with parts shipped from Norway. Product developers here also designs stoves, such as the F45 Greenville.
 
The factory is a busy place now. Workers are striving to fill a backlog of orders. On a recent visit, the assembly line was putting together the Maine-designed F-55 Carrabassett, a large, steel-and-cast-iron stove with a heating capacity of up to 2,500 square feet. It retails for roughly $2,500.
 
The F-55 Carrabassett is EPA-certified at 3.5 grams/hour. To reduce emissions much further, Jotul says it would have to redesign the stove and fit it with a catalytic combustion chamber, which would make what’s already an expensive stove less affordable.
 
“The real task is to give people in rural Maine incentives to replace their stoves,” said Watson, the Jotul president.
 
The further irony, Jotul says, is that hitting the 1.3 gram/hour EPA target won’t necessarily translate into cleaner air. The current EPA test method uses dry, Douglas fir lumber. In the real world, people burn firewood that may be left out in the rain and snow and is not fully seasoned. Wet, recently cut wood burns less efficiently and gives off more smoke.
 
OLDER STOVES THE MAIN CULPRIT
 
The EPA declined to talk about its testing program or the proposed performance standards for wood heaters, noting that the matter is under review. A staffer did say EPA has conducted two years of outreach and received important feedback, and that public comments will be welcomed when the proposal is formally issued.
 
Some of that information has come from the Hearth, Patio & Barbecue Association, which represents many stove makers. It commissioned a study that found meeting standards below 2.5 grams/hour wasn’t cost-effective, in terms of the extra amount of particle pollution removed from the air.
 
Jotul also has been trying to make this case with the help of Maine’s congressional delegation, notably Sen. Susan Collins. Behind the scenes, Jotul and a handful of stove makers, including HearthStone of Morrisville, Vt., and Regency of Vancouver, British Columbia, are engaged with EPA staffers and with the Office of Management and Budget, which has been conducting a cost-benefit review.
 
“What is missing,” said David Kuhfahl, president of HearthStone Quality Home Heating Products Inc., “is that the EPA has allowed inexpensive, dirty products to continue on the market all these years. The biggest opportunity to clean up the air quality is to replace the majority of stoves in use today that do not meet the realistic combustion quality of the stoves we have developed.”
 
Kuhfahl also said he fears consumers will reject stoves that require technical maintenance and expensive repairs.
 
“The reality is that the wood stove as we know it would go away,” he said.
 
Jotul also has been conducting a back-and-forth with EPA staffers, including Gil Wood, the lead official on the new regulations. In an email exchange last month, Wood said he agreed with the merits of changing out old wood stoves.
 
“The hurdle is, where does the U.S. get the billions of dollars to replace the millions of old, dirty (pre-EPA regulations) wood stoves, even though the monetized health benefits far exceed the costs?” Wood replied in his email.
 
CHANGE-OUT PROGRAMS LACK FUNDS
 
In other states, change-out programs have been launched with combinations of government and private funds. One effort in southern New Hampshire used $250,000 from federal fines against commercial polluters. It offered extra money for low-income residents. Western Massachusetts had $800,000 this year for a second-round program funded largely from EPA fines on coal-burning plants.
 
Change-out programs often target populated areas in river valleys or near mountain ranges, where wood smoke settles on calm, cold nights. Those conditions exist in several Maine communities.
 
“In this part of the country, change-out programs are the best way to reduce particle pollution,” said Ed Miller, the lung association’s senior vice president for policy.
 
Maine has a wood-stove change-out law that’s similar to the program in southern New Hampshire. The problem is, there’s no money to fund it.
 
Monitoring stations run by the Maine Department of Environmental Protection show that the state’s air quality meets federal particulate standards, and has been improving. But problem areas do exist. The state did a special wood-smoke study a few years ago in Greenville, but the proximity of Moosehead Lake appears to have diluted the results. Now the DEP is thinking about a new study in Bethel, where some residents are complaining.
 
BALANCED APPROACH FAVORED
 
“Violating the standards and causing a nuisance are two different things,” said Marc Cone, director of the DEP’s air quality bureau.
 
Cone said the DEP’s interest is balancing air quality with affordable heat. He expects the state to weigh in on the EPA proposal when it’s released.
 
“We want to see a continued reduction in what stoves put out,” he said. “However, we don’t want stoves to cost twice as much.”
 
A similar point of view is being expressed by U.S. Rep. Mike Michaud, who represents Maine’s sprawling and rural 2nd Congressional District. It has the highest concentration of wood and pellet burning of any district in the country, according to the Alliance on Green Heat.
 
“As with any other source of energy,” Michaud said in a statement, “regulations should offer a balanced approach and keep pace with modern technology. I would encourage the EPA to ensure that any new standards protect public health and the environment, without unnecessarily burdening manufacturers or making wood stoves unaffordable for consumers.”
 
Tux Turkel can be contacted at 791-6462 or at:
 
tturkel@pressherald.com
 
-- 
Nancy Alderman, President
Environment and Human Health, Inc.
1191 Ridge Road
North Haven, CT   06473
(phone) 203-248-6582
(Fax)     203-288-7571
http://www.ehhi.org
http://ehhijournal.org
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2013 Dec. 13: NRDC: A Singular Day for Clean Air: Safeguards for 45,000 Lives are Debated in Courts

A Singular Day for Clean Air: Safeguards for 45,000 Lives Are Debated in Courts

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Asthma and Air Pollution

Peter Lehner, Executive Director, New York City

When it comes to reducing the outdoor air pollution that triggers asthma, the state of Connecticut has done many things right: it requires tailpipe emissions checks for vehicles, has installed pollution controls on power plants, and is considering raising the amount of clean, renewable power in its energy mix. Yet the asthma rate for children here is a full two percentage points higher than nationwide; adult asthma rates in the state are also consistently higher than the national average. In 2009, 50 people in Connecticut died of asthma-related causes.

Despite efforts to clear its own air, Connecticut can’t control the wind, and everyone knows which way it’s blowing: from west to east, bringing in a toxic mix of air pollution from beyond state lines. In New Haven, researchers estimate that 93 percent of asthma-triggering ozone pollution comes from outside the state. According to a standard issued under the Obama administration, which was struck down in an appeals court last year, polluting states upwind need to clean up their act.

“They’re getting away with murder,” Connecticut governor Daniel Molloy told the New York Times.

The Supreme Court yesterday heard arguments for and against this standard, a clean air safeguard designed to prevent the premature deaths of 34,000 people every year from deadly air pollution that crosses state lines. The EPA argued its case opposite several “upwind” states, representatives of the coal industry and other industrial polluters. And on the same day in Washington, despite the snowstorm that shut down most of the federal government, another Clean Air Act safeguard, the Mercury and Air Toxics Standard, which prevents 11,000 premature deaths every year, was under attack from polluters at the U.S. Court of Appeals for the D.C. Circuit Court.

It’s not every day that our courts have such a singular opportunity to stand behind clean air laws that are designed to protect the health of millions of Americans. Together, these safeguards will prevent 45,000 deaths and half a million asthma attacks every year. They will help keep hundreds of thousands of people out of hospitals and emergency rooms, stay in school and at work, able to get outside, exercise, and lead a normal life. The Cross-State Air Pollution rule alone protects the health of 240 million Americans in the Midwest and eastern United States.

Polluters have attempted to attack health protections like these every step of the way in the 43-year history of the Clean Air Act. They seek to cast doubt on science, they inflate costs, they threaten blackouts and staggering economic setbacks. We’ve seen this with acid rain controls, which cost 80 percent less than industry predicted, and now prevent 19,000 premature deaths each year. Industry told the courts that phasing out ozone-depleting CFC’s would cause hospitals and office buildings to overheat. But justice prevailed, the law was upheld, and we got the job done, years ahead of schedule, without anyone breaking a sweat—and at 30 percent of the predicted costs. In fact, when you look at the Clean Air Act benefits over the years, the act boasts better returns than Warren Buffet.

Under the Clean Air Act, we all have a right to breathe clean air, no matter who we are or where we live. Smog, soot, mercury and toxic pollution from power plants kill and sicken hundreds of thousands of Americans each year. The courts should stand on the side of the people and uphold the laws that protect us from polluters and protect our health.

Photo Credit: Asthma and Air Pollution/shutterstock

Connect: Twitter website

Authored by:

Peter Lehner

I am the Executive Director of NRDC. The position is my second at NRDC. Beginning in 1994, I led the Clean Water Program for five years, before leaving in 1999 to serve as the head of the Environmental Protection Bureau for the Attorney General of the State of New York.

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2013 Dec. 13: NRDC: Clean Air has its Day in Court

Clean Air Has Its Day In Court

John Walke

Posted December 13, 2013 in Curbing PollutionHealth and the EnvironmentU.S. Law and Policy

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Two of the most important health standards ever adopted by the Environmental Protection Agency to reduce harmful air pollution from power plants had their day in court this week. Actually two courts: the Supreme Court heard arguments on EPA’s Cross-State Air Pollution Rule (CSAPR), which targets smog and soot pollution emitted from power plants in upwind states that travels across state boundaries to foul the air in downwind states. Down the street in the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel heard challenges from industry, conservative states and some environmental groups to EPA’s Mercury and Air Toxic Standards (MATS) for coal- and oil-burning power plants.

EPA has projected that together these two rules will prevent up to 45,000 premature deaths, 20,000 nonfatal heart attacks, and more than a half million asthma attacks every year once the standards are implemented.

Both EPA standards appeared to fare well with the jurists. Most of the eight Supreme Court justices hearing the case (Justice Alito having recused himself) appeared sympathetic to the complexity of the statutory task facing EPA, and the need to respect EPA’s expertise and discretion in carrying out complicated Clean Air Act responsibilities to safeguard air quality and communities in downwind states.

The D.C. Circuit judges appeared unmoved by the frontal assaults mounted by the utility industry and a handful of states to bar EPA from effectively reducing hazardous air pollution at all from power plants. Of course, any lawyer will tell you it is a perilous undertaking to predict the outcome of a court case based on the oral argument, and NRDC is a party in both cases, so caveats are justified.

Other observers also thought both cases went well for EPA. On the legally sophisticated SCOTUSblog.com, Lyle Denniston wrote that in the cross-state case, “the EPA could walk away from Tuesday’s oral arguments on how the agency acted to limit foul air from floating from state to state, with a sense that maybe it did it about right. As usual, it faced some criticism, true, but this time that did not dominate.”

Professor Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, also “thought that the argument went very well for the government, for EPA” in the Supreme Court. Getting to the heart of the matter, he observed that “the government was able to engage the justices on its core point, which is that costs can be taken into account in setting the pollution control burden between upwind and downwind states, and that’s the core of the case.”

Trade press articles discussing the MATS case noted that the three judge panel “appeared to side with the EPA on the key issue of whether the agency met a statutory threshold of finding it is ‘appropriate and necessary’ to regulate utility air toxics.”

Summary of Legal Issues in the Cross-State Air Pollution Rule case

The Supreme Court granted certiorari on three issues:

  1. Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief.
  2. Whether States are excused from adopting [State plans] prohibiting emissions that “contribute significantly” to air pollution problems in other States until after the EPA has adopted a rule quantifying each State’s interstate pollution obligations.
  3. Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State’s physically proportionate responsibility for each downwind air quality problem.

Oral Argument

Question One: To the surprise of most, after the Court had expanded oral argument time from 60 minutes to an unusual 90 minutes just days before the argument, none of the parties nor the justices even mentioned the jurisdictional issues. It’s hard to say how this issue will be resolved, but at the very least, the justices were eager to discuss the merits and it appears that the jurisdictional issues may be of less importance to the Court than previously believed. If the justices do reach the merits, however, along the way they could end up creating important caselaw on the topics of administrative exhaustion and subject matter jurisdiction under the Clean Air Act and even the Administrative Procedure Act.

Question Two: Both the parties and the justices did discuss the second issue. In essence, this concerns whether the Act requires EPA first to undertake another lengthy federal rulemaking to define key legal understandings before upwind states are then given another chance to try (and fail, as many have) to abate their own pollution contributions to downwind states’ air quality problems. This topic too was discussed less than expected.

Chief Justice Roberts made one seemingly important observation favorable to EPA’s position. When the Texas solicitor general argued that EPA had unfairly required upwind states to submit pollution control plans to EPA before those states knew what their Good Neighbor program obligations were, the Chief Justice responded: “Well, it’s — it’s certainly — it’s certainly hard, but it is what the statute says; and it seems to me that if EPA had taken a different view, it would have been contrary to the statute.”

Question Three: The court and the parties spent the majority of the 90 minutes discussing this issue. EPA and just the industry challengers (importantly, see below) disagree over whether EPA may consider the cost and cost-effectiveness of pollution reductions in determining each upwind state’s contribution to transboundary pollution problems. The industry challengers argued that EPA could not consider costs, and must instead apportion responsibility based on geographically proportionate air quality factors alone. EPA and all the parties supporting the agency in the Supreme Court view this to be overly simplistic, less effective and perhaps even impossible to administer. Instead, EPA argues that it may consider the costs of effectively controlling upwind air pollution contributions in conjunction with air quality factors.

With the exception of Justice Scalia, who spoke out forcefully against EPA’s position, most of the remaining Justices who did speak appeared receptive to siding with EPA. Justice Kennedy, for example, remarked that “the word ‘significantly’ does import a judgmental component” granting EPA some degree of latitude and could mean more than merely physical “amounts” of pollution, as the industry parties argued. Comments from other justices―including a series of increasingly entertaining hypotheticals involving sheep and basketball and knives―suggested the understanding that the realities of multi-pathway air pollution are more complex than the simplistic proportionality approach adopted in the lower court ruling.

Mercury and Air Toxics Standards Case

It’s not possible to succinctly describe the range of complex legal and technical issues in the D.C. Circuit lawsuits that consumed nearly 4 hours of argument time. The industry and state challengers to MATS mounted a series of somewhat audacious frontal assaults against EPA’s very ability to reduce mercury and nearly seven dozen other highly toxic air pollutants from power plants using the law’s most effective tools.

There is no dispute that Congress intended these tools for every other industry in the country, nor that power plants are far and away the largest industrial emitters of toxic air pollution in America. (In 2011, EPA estimated that the following portions of all air pollution in the United States came from power plants: 50% of mercury emissions, 62% of arsenic, 77% of acid gases and 60% of sulfur dioxide comprising deadly particulate matter pollution.)

So there was an especially perverse audacity to the industry arguments that power plants did deserve to be treated differently―vastly more leniently―than any other industry. The attorney representing the hostile utility companies actually began his presentation by arguing that power plants “are factually different from” other industrial sources; that “trace amounts” of hazardous elements “occur naturally in coal”; and that Congress understood that hazardous air pollutants from power plants pose “insignificant health risks.”

Fortunately, these arguments and related attacks on EPA’s core regulatory authority did not appear to gain much traction with the judges. While a few subsidiary legal issues did face some skeptical questions from the bench, if the court upholds EPA’s authority and the standards as a whole then we should enjoy essentially the same levels of overall reductions in hazardous air pollutants and deadly soot pollution. The rule’s emission standards for acid gases and particulate matter will continue to drive the real-world pollution control, retirement and repowering decisions by companies.

Industry’s Campaign for Creative Destruction

The industry and state challengers to CSAPR had not argued during the rulemaking or in their briefs to the D.C. Circuit below that EPA was prohibited from considering cost in interpreting the term “significantly” and implementing the statutory Good Neighbor program. Judge Kavanaugh did not argue in his opinion below that EPA was barred from considering cost.

Only in the briefs to the Supreme Court did some industry challengers argue for the first time that the Clean Air Act barred EPA from considering cost in carrying out the Good Neighbor program. Indeed, in a remarkable display of chutzpah, these challengers accused EPA in the Supreme Court of “largely ignoring” a Supreme Court cost precedent (American Trucking v. Whitman) that these challengers themselves had never cited. Further reflecting the switcheroo, scattershot nature of their Supreme Court arguments, industry had told the lower court that they were “not advocating” the implementation approach that they then turned around and argued to the Supreme Court that the statute mandated.

The attorney arguing on behalf of EPA from the Solicitor General’s office nicely captured the paradox―one might say, hypocrisy―at the heart of the utility challengers’ legal stance that EPA is barred from considering cost under the relevant statutory provision:

I mean, one of the ironic things about this case is that the only ill consequence of overcontrol is cost. That is, this is not a situation in which there is some . . . distinct public health problem. . . that is caused if power plants are emitting too little NOx or SO2. The only reason that people worry about overcontrol, about reducing emissions more than they need to be, is that it costs money. And if that’s the problem to be avoided, it seems strange that EPA can’t take account of costs in theorizing a solution.

This explanation pointedly highlights that the industry challengers are not in fact seeking sensible cost solutions to the dilemma of transboundary air pollution; they are seeking annihilation of EPA’s standards and extended delay until EPA has the chance to reissue standards (for the third time) still required by law, at which point industry litigants will again mount new attacks in service of creative destruction and delay.

During the Supreme Court oral argument, in one of the more noteworthy exchanges, the Texas solicitor general admitted that the state challengers did not share the view of their industry co-challengers that EPA was prohibited from considering cost. This division between the state and industry challengers, and even within the group of industry challengers, cannot help the most strident industry challengers’ cause arguing that the statute plainly bars consideration of cost.

The industry and state challengers to MATS in the D.C. Circuit presented more of the same, but with an even more startling twist: there the challengers argued that a similarly ambiguous statutory term (“appropriate” v. “significantly”) actually required EPA to consider cost. For all you lawyers out there, these challengers had argued in their briefs that the “plain meaning” of the statutory term “appropriate” required this result under step one of the famous case of Chevron v. NRDC.

This prompted a marvelous exchange during the D.C. Circuit oral argument in which Chief Judge Garland confronted this legal position with some apparent incredulity, leading him to ask the Michigan attorney representing the state challengers whether he agreed that it would be a “reasonable reading” under Chevron not to require EPA to consider cost. The Michigan attorney was forced to respond Yes, raising eyebrows and the question what his industry co-litigants must have thought about that response. Judge Kavanaugh remarked that this response was decidedly not what the industry-state challengers’ brief said.

So what was the aim of the industry and state challengers in arguing that the Clean Air Act requires consideration of cost in answering the threshold question whether to reduce hazardous air pollutants from power plants using the law’s most effective technology-based program? The same as the industry-state challengers’ objective in the CSAPR case, actually: blowing up EPA’s regulation altogether. The challengers’ D.C. Circuit brief says with ruthless efficiency: “EPA’s failure to take costs into account, as Congress intended, requires vacatur of the MATS rule.”

Like the industry and state challengers in the Supreme Court, the similar challenges in the D.C. Circuit amount to a campaign to destroy the entire effort to reduce hazardous air pollution from power plants. Fortunately, the legal arguments underlying this nullification campaign did not appear to fare well.

EPA’s legal position in both cases is consistent regarding its authority to consider cost―or not―in the statutes the agency administers: faced with ambiguous statutory language, EPA believes it has the legal discretion to consider or not consider cost, so long as cost is not a clearly prohibited consideration based on statutory indices (as it is in Clean Air Act section 109; see American Trucking v. Whitman); so long as EPA’s statutory construction is a permissible one; and so long as EPA provides rational grounds for when and whether it decides to consider cost based on the facts and statutory context.

One final observation worth making about the industry stances in both cases: it is striking how much the industry challengers have failed to advance any coherent alternative regulatory scheme that would give meaning to carrying out the Clean Air Act’s health objectives. That is not their concern. Escaping effective regulation is.

The industry challengers have not yet provided a sensible explanation for how to carry out the Good Neighbor program in a way that would protect downwind communities and take into account the complex, multi-pathway nature of transboundary air pollution. Justice Kagan rightly suggested that the mathematical “proportionality” dictate in the lower court ruling is “simplistic.” Justice Roberts repeated EPA’s description of transboundary air pollution pathways as a “spaghetti matrix.” This figure shows how right he is:

EPA Spaghetti Matrix Map

In the MATS case, the industry challengers’ concern for a coherent regulatory solution is similarly absent. Despite over 13 years fighting EPA’s efforts to effectively reduce all hazardous air pollutants from power plants, utility industry attorneys have yet to describe in any meaningful way what regulations they do believe the law allows and why that approach would be effective. Counsel for the public health and environmental parties memorably described industry’s vague alternative as a “wide-open, utilitarian balancing test.” Again, effective regulation is not the industry challengers’ concern.

Stepping back to assess the industry challengers’ conflicting legal interpretations regarding the permissibility of EPA considering cost in each case, one cannot help noticing that the result-oriented outcome of these contradictory positions would be to invalidate EPA’s clean air standards in both cases. After thousands of pages of comments and legal filings, all the rhetoric about states’ rights and economic calamity and a war on coal, the industry lawsuits come down to one common enterprise: blowing up EPA’s health standards that safeguard the air we breathe, and delaying replacement standards as long as possible while power plants keep on polluting.

The EPA clean air standards appear to have faced an overall favorable reception in court, and one hopes industry’s campaign of destruction will fail. It seemed like clean air had a pretty good day in court. Let’s hope the courts will uphold these standards to deliver healthier air and better days for all Americans.

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