Tag Archives: Clean Air Act

Here’s why the Clean Air Act (CAA) needs a ‘best available science’ clause.

To avoid basing rules on marginal or flawed science (e.g. here) as described below a “best available science” clause is needed in the Clean Air Act (CAA) — and other environmental laws — as in the Safe Drinking Water Act (SDWA”)”:

“To the degree that an Agency action is based on science, the Administrator shall use (1) the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and (2) data collected by accepted methods or best available methods (if
the reliability of the method and the nature of the decision justifies use of the data”. Public Law 104-182. Section 1412(b)(4)(D).


Click here to read the full report.


USEPA revises New Source Review (NSR) guidance, simplifies permitting

The Environmental Protection Agency issued a guidance to clear up uncertainties in obtaining air quality permits required to build or modify facilities, like power plants and refineries. click here

Supreme Court Decision to Halt “Clean Power Plan” a Positive Step

The first positive step in the right direction.

“The ruling was a victory for the group of 27 state attorneys general seeking to put a halt to regulations opponents have called “an unprecedented power grab.” ” here

Senators question USEPA’s “sue and settle” agreements with Sierra Club

Radical organizations like the Sierra Club raise money by filing lawsuits against agencies like the USEPA and then settling, having their fees paid. A big racket, since they represent only themselves, not the citizens.

April 1, 2013

The Honorable Gina McCarthy
Assistant Administrator
Office of Air and Radiation
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20460

Dear Assistant Administrator McCarthy:

We are writing to express concerns with your February 12, 2013, proposed rule, “Startup, Shutdown, and Malfunction: Proposed Response to Petition for Rulemaking, Findings of Inadequacy, and Call for Plan Revisions.” We find this proposed rule deeply flawed for several reasons.

First, this is the latest in a series of rulemakings initiated by this Administration in response to so-called “sue and settle” agreements with special interest groups. In November 2011, the Environmental Protection Agency (EPA) and the Sierra Club negotiated a settlement whereby EPA unilaterally agreed to respond to a petition filed by Sierra Club seeking the elimination of a longstanding Clean Air Act (CAA) exemption for excess emissions during periods of startup, shutdown, and malfunction (“SSM”). The EPA went out of its way further to deny the participation of the States, and other affected parties. Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit. In other words, EPA went out of its way to resolve the SSM petition in a coordinated settlement with the Sierra Club. Our concerns with the Agency’s sue and settle tactics are well documented-these settlement agreements are often accomplished in a closed door fashion that contravenes the Executive Branch’s solemn obligation to defend the law, avoids transparency and accountability, excludes impacted parties, and often results in the federal government paying the legal bills of these special interest groups at taxpayer expense. The circumstances under which EPA has agreed to initiate this new rulemaking reaffirms a pattern and practice of circumventing transparency.

Second, EPA’s new approach, embodied in the SSM proposal, contravenes four decades of prior EPA practice. The SSM exemption has been approved by EPA since 1972 and has been a key element of most EPA-approved State Implementation Plans (SIPs). In fact, EPA has included SSM exemptions in EPA’s own standards, including the New Source Performance Standards, for decades. Notwithstanding 40 years of precedent to the contrary, EPA has now decided that the SIPs of 36 states are legally inadequate because of their SSM provisions.

Third, EPA aims to command by federal edict that 36 States submit revised SIPs for EPA review and approval. This approach-confounded by “sue and settle” style tactics-blatantly ignores the proper role of the States and EPA under the Clean Air Act’s cooperative federalism structure. The U.S. Court of Appeals for the D.C. Circuit recently explained the primary role of the States when it invalidated EPA’s Cross State Air Pollution Rule (which likewise sought to override the States):

To deal with [the Clean Air Act’s] complex regulatory challenge, Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.

Eme Homer City Generation v. EPA, 696 F.3d 7, 11 (D.C. Cir. 2012) (emphasis added). Likewise, as the Fifth Circuit has long recognized, “The great flexibility accorded the states under the Clean Air Act is […] illustrated by the sharply contrasting, narrow role to be played by the EPA.” Fla. Power & Light Co. v. Costle, 650 F.2d 579, 587 (5th Cir. 1981). EPA’s latest proposal on SSM exemptions would suggest that EPA believes the States have been relegated to mere regional offices of the EPA. See U.S. Const. amend. X (“powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).

Finally, we find unacceptable the unreasonably brief time period for public comments on the SSM proposal. EPA is allowing just 30 days for public comment and, if requested, just one public hearing-in Washington, DC. More time is required for a proposal changing four decades of EPA precedent and the SIPs of 36 states. We have heard rumors of a short extension, but we would ask that, at a minimum, EPA grant an extension of the public comment period to at least 120 days, as requested by the Attorneys General of seventeen states (including Alabama and Louisiana) in a letter to you dated March 15, 2013.

In light of these concerns, we request an immediate response to the following questions with a simple “yes” or “no” answer:

1. Will EPA provide all records, electronic or otherwise, of meetings, conversations, e-mails, letters, or other communications or other documents in EPA’s possession referring or relating to the Sierra Club SSM petition and settlement agreement?

2. Did EPA or any other federal entity make any payments, for attorneys’ fees or otherwise, to the Sierra Club in relation to the above-referenced litigation or settlement agreement?

3. Did EPA invite the States to participate in the settlement discussions with the Sierra Club in this matter?

4. Did EPA amend the settlement agreement in December 2012 to require that “EPA shall confer with counsel for Sierra Club concerning the Agency’s progress towards meeting these obligations”?

5. Did EPA amend the settlement agreement to require that EPA or Sierra Club confer with the affected States concerning the settlement?

6. Did EPA invite the States to review the draft settlement agreement with the Sierra Club?

7. In a letter dated March 15, 2013, the Attorneys General of seventeen States requested that the public comment period for the SSM proposed rule be extended by a minimum of 120-days from February 22, 2013. We believe this request should be granted. Will EPA grant this request?

8. In a letter dated August 10, 2012, the Attorneys General of thirteen States requested, pursuant to the Freedom of Information Act, documents concerning, among other things, recent Clean Air Act settlements with non-governmental organizations. Will EPA provide the requested documents?

Your kind attention to this important matter is greatly appreciated.


David Vitter
Ranking Member
Senate Committee on Environment & Public Works

Jeff Sessions
Ranking Member
Senate Subcommittee on Clean Air & Nuclear Safety

USEPA Cross-State Air Pollution Rule vacated (overturned)

The majority ruling below. Click here for full opinion.

KAVANAUGH, Circuit Judge: Some emissions of air pollutants affect air quality in the States where the pollutants are emitted. Some emissions of air pollutants travel across State boundaries and affect air quality in downwind States. To deal with that complex regulatory challenge, Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.

In addition, and of primary relevance here, upwind States must prevent sources within their borders from emitting federally determined “amounts” of pollution that travel across State lines and “contribute significantly” to a downwind State’s “nonattainment” of federal air quality standards. That requirement is sometimes called the “good neighbor” provision.

In August 2011, to implement the statutory good neighbor requirement, EPA promulgated the rule at issue in this case, the Transport Rule, also known as the Cross-State Air Pollution Rule. The Transport Rule defines emissions reduction responsibilities for 28 upwind States based on those States’ contributions to downwind States’ air quality problems. The Rule limits emissions from upwind States’ coal- and natural gas-fired power plants, among other sources. Those power plants generate the majority of electricity used in the United States, but they also emit pollutants that affect air quality. The Transport Rule targets two of those pollutants, sulfur dioxide (SO2) and nitrogen oxides (NOx).

Various States, local governments, industry groups, and labor organizations have petitioned for review of the Transport Rule. Although the facts here are complicated, the legal principles that govern this case are straightforward: Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority.

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

For each of those two independent reasons, EPA’s Transport Rule violates federal law. Therefore, the Rule must be vacated.

Cornwall Alliance: Protecting the Unborn and the Pro-Life Movement from a Misleading Environmentalist Tactic

The Cornwall Alliance has issued a statement responding to claims made by environmetal groups that mercury regulation is pro-life. Click here for the statement. Click here for the press release. The text of the statement is below:

Protecting the Unborn and the Pro-Life Movement from a Misleading Environmentalist Tactic
A Joint Statement by Pro-Life Leaders

Recently some environmentalists have portrayed certain of their causes as intrinsic to the pro-life movement. The tactic often involves appealing to a “seamless garment” of support for life, or to being “consistently pro-life” or “completely pro-life.”

As leaders of the pro-life movement, we reject that portrayal as disingenuous and dangerous to our efforts to protect the lives of unborn children.

The term pro-life originated historically in the struggle to end abortion on demand and continues to be used in public discourse overwhelmingly in that sense. To ignore that is at best sloppy communication and at worst intentional deception. The life in pro-life denotes not quality of life but life itself. The term denotes opposition to a procedure that intentionally results in dead babies.

In stark contrast, most environmental causes promoted as pro-life involve little threat to human life itself, and no intent to kill anyone. For example, even if one grants the exaggerated numbers and harms claimed by the Evangelical Environmental Network (EEN) in its recent quarter-million-dollar advertising campaign that claimed, “being pro-life means protecting the unborn from mercury pollution,” mercury exposure due to power-plant emissions does not kill infants.

Consequently, calling mercury pollution and similar environmental causes pro-life obscures the meaning of pro-life. And thanking politicians with 100% pro-abortion voting records (even some who support partial-birth abortion) for their “pro-life” position because they supported restrictions on mercury emissions, while rebuking some with 100% pro-life voting records because they opposed or didn’t support the new restrictions, as EEN’s campaign did, will confuse voters, divide the pro-life vote, and postpone the end of abortion on demand in America.

This doesn’t mean we should ignore environmental risks. It does mean they should not be portrayed as pro-life. Genuinely pro-life people will usually desire to reduce other risks as well—guided by cost/benefit analysis. But to call those issues “pro-life” is to obscure the meaning of the term.

Two fundamental principles distinguish truly pro-life issues (like abortion, euthanasia, and embryonic stem cell research) from environmental issues. First and foremost, truly pro-life issues are issues of actual life and death, while environmental issues tend to be matters of health. Second, truly pro-life issues address actual intent to kill innocent people, whether the unborn, the gravely ill, or the aged, while environmental issues do not.

If environmental advocates still want to support mercury-emission reductions or other environmental causes, let them do so honestly and above board. But they should not promote those causes under the pro-life banner. That is at best badly misinformed, at worst dishonest.

We call on environmentalists to cease portraying such causes as pro-life and join us in working diligently to reduce and end abortion on demand in the United States, which every year kills about 1.2 million babies, amounting to over 54 million in the 39 years since the Supreme Court’s Roe v. Wade decision.


  • Kim Andrews, Missouri Eagle Forum
  • Sara L. Anderson, Executive Vice President, Bristol House, LTD
  • Dr. Herman Bailey and Dr. Sharron Bailey, Hosts, Herman & Sharron Television Ministry, Christian Television Network
  • J. Matt Barber, Vice President, Liberty Counsel Action
  • Gary L. Bauer, President, American Values
  • E. Calvin Beisner, Ph.D., Founder and National Spokesman, Cornwall Alliance for the Stewardship of Creation
  • Rev. Pierre Bynum, Founder, Pro-Life Action Churches of Maryland, Inc, Chaplain, Family Research Council
  • Nancy Clark, Director of Women’s Ministries, Elim Fellowship; President, Evangelical Women Leaders of the National Association of Evangelicals
  • Janice Shaw Crouse, Ph.D., Executive Director and Senior Fellow, The Beverly LaHaye Institute
  • Marjorie Dannenfelser, President, Susan B Anthony List
  • Rev. Barrett Duke, Ph.D., Vice President for Public Policy and Research, Southern Baptist Ethics and Religious Liberty Commission
  • Rev. Bryan Fischer, Director of Issues Analysis, American Family Association
  • Tim S. Goeglein, Vice President for External Relations, Focus on the Family
  • Rev. Wayne A. Grudem, Ph.D., Research Professor of Theology and Biblical Studies, Phoenix Seminary; Board Member, Council on Biblical Manhood and Womanhood
  • Donna Hearne, Convener, Educational Policy Conference
  • Rev. Peter Jones, Ph.D., Director, truthXchange, and Adjunct Professor and Scholar in Residence, Westminster Theological Seminary, Escondido, CA
  • Rev. Richard Land, Ph.D., President, Southern Baptist Ethics & Religious Liberty Commission
  • Jan Markell, Founder, Olive Tree Ministries
  • Tom Minnery, Senior Vice President, Focus on the Family
  • Marilyn Musgrave, Vice President for Government Affairs, Susan B Anthony List
  • Penny Young Nance, Chief Executive Officer and President, Concerned Women for America
  • Tony Perkins, President, Family Research Council
  • Rev. Joey Pipa, Ph.D., President, Greenville Presbyterian Theological Seminary
  • Kelly Shackelford, President & CEO, Liberty Institute
  • Robert F. Schwarzwalder, Jr., Senior Vice President, Family Research Council
  • Eugenie Smith, President, Eagle Forum of Alabama
  • Ginger Soud, Eagle Forum of Florida
  • Mat Staver, Founder and Chairman, Liberty Counsel
  • Mark Tooley, President, Institute on Religion and Democracy
  • Kelley Wesley,  Pregnancy Center Advisor, former Chief Executive Officer of Sanctity of Life Ministries
  • Tim Wildmon, President, American Family Association

(Institutional affiliations are listed for identification only and do not imply institutional endorsement.)

Congressional Letter: Tier 3 standards for gasoline