Publications
July 30, 2014 Article

Environmental Alert: EPA Will Not Require or Enforce Air Permits Solely for GHGs

On July 24, 2014, the U.S. Environmental Protection Agency (EPA) Office of Air and Radiation issued a Memorandum to all EPA Regions regarding the issuance and enforcement of Greenhouse Gas (GHG) related air permits following the Supreme Court's Decision in Utility Air Regulatory Group v. Environmental Protection Agency (No. 12-1146). In Utility Air Regulatory Group, the Court held that EPA may not use greenhouse gases as a pollutant in determining whether a source is a major source required to obtain a Prevention of Significant Deterioration (PSD) or Title V permit. EPA's Memorandum explains to the regions that this decision affects sources that are only considered major sources as a result of GHG emissions ("Step 2" sources), but does not affect sources that are required to obtain a Title V or PSD permit for a conventional pollutant (e.g. particulate matter or sulfur dioxide) ("Step 1" or "anyway sources" sources).

To comply with the Supreme Court's Decision regarding Step 2 sources, EPA Regional Offices were informed that EPA will not apply or enforce "Federal regulations or EPA-approved SIP provisions that require a stationary source to obtain a PSD permit if GHG and the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification." Similarly, EPA will no longer require a "stationary source to obtain a title V permit solely because the source emits or has the potential to emit greenhouse gases above the major source thresholds."

Step 1 source requirements will remain unchanged. "EPA intends to continue applying the PSD BACT [Best Available Control Technology] requirement to GHG emissions if the source emits or has the potential to emit 75,000 tons per year (tpy) or more of GHG on a carbon dioxide equivalent (CO2e) basis. With respect to modified ‘anyway sources,' the EPA intends to continue applying the PSD BACT requirements to GHG if both of the following circumstances are present: (1) the modification is otherwise subject to PSD for a pollutant other than GHG; (2) the modification results in a GHG emissions increase and net GHG emissions increase equal to or greater than 75,000 tpy CO2e and great than zero on a mass basis."

In addition to summarizing the modifications in permit requirements, the EPA also identified the next steps to be taken regarding the decision. Once the Supreme Court makes the decision final and sends the decision to the D.C. Circuit for further proceedings, the EPA and the Department of Justice will begin consultation regarding the identification of particular parts of the regulations that require revision or elimination.

Finally, EPA observed that even though it no longer intends to require permits for Step 2 sources, individual states may decide to require permits for such sources. Therefore, it is important to make sure facilities understand state air permitting requirements for GHGs in the aftermath of Utility Air Regulatory Group.

For more information regarding how the Supreme Court's Decision may impact your industry, please contact Jeff Talbert in Preti Flaherty's Climate Strategy and Environmental Groups, at 791-3000.

Firm Highlights

Publication

Environmental Alert: Supreme Court Finds CERCLA Does Not Bar State Law Claims

The Supreme Court of the United States on Monday issued a decision authored by Chief Justice Roberts with far-reaching implications for targets of federal environmental enforcement actions. The Court in Atlantic Richfield Co. v...

Publication

EPA Announces Temporary Relaxation of Certain Environmental Compliance and Monitoring Obligations During the COVID-19 Pandemic

Citing potential worker shortages and social distancing and travel restrictions related to the COVID-19 pandemic, on Thursday, March 26, 2020, the U.S. Environmental Protection Agency announced that it would exercise enforcement discretion and temporarily...

Publication

Preti Flaherty COVID-19 Resources

In response to the ongoing COVID-19 pandemic, Preti Flaherty's attorneys have maintained a constant stream of the most up-to-date information and resources for our clients, business partners, and others struggling to navigate these complex...

News

Eighteen Preti Flaherty Attorneys Selected as Chambers USA Leaders in Their Field

Eighteen Preti Flaherty attorneys and five practice groups have been selected for inclusion in the 2020 Chambers USA Guide to America's Leading Lawyers for Business , the highly regarded directory of leading attorneys and...

News

Preti Flaherty Welcomes Attorneys James W. Beers, Jr., and Alan E. Topalian to the Firm

Preti Flaherty is pleased to announce the arrival of two new attorneys: James W. Beers, Jr., and Alan E. Topalian. James joins the Environmental Practice Group as a Director and will work from the...

Publication

Supreme Court Finds Clean Water Act Jurisdiction For Discharges To Groundwater

Today, in a 6-3 opinion, the Supreme Court held that a Clean Water Act (CWA) permit can be required for discharges to groundwater “if the addition of the pollutants through groundwater is the functional...