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Various states have sued EPA over its tailoring rule, by which the agency is rolling out enforcement of greenhouse gas regulations to the largest facilities first, followed by smaller ones later. States must comply with EPA's new regulations. The NAM and 14 other business associations in our coalition have filed a motion to intervene in litigation filed by representatives of 8 states challenging EPA's authority. Their lawsuit seeks judicial review of EPA's plan to retroactively limit its previous approval of pollution thresholds in State Implementation Plans (SIPs). The states are likely to argue that EPA violated the Clean Air Act by its reinterpretation of existing regulations, which would result in significant additional costs to manufacturers regulated under state programs.

The NAM's intervention in this case is designed to assist the court in understanding the interaction between EPA's requirements, state implementation programs, and emissions permit requirements affecting manufacturers.

The NAM and other organizations have also filed a separate petition to review the EPA's tailoring rule. For a complete listing of NAM cases against EPA, click here.
Related Documents:
NAM motion to intervene  (August 30, 2010)

The NAM and 16 other business associations have filed 4 petitions for review in the U.S. Court of Appeals for the D.C. Circuit, challenging EPA regulations from 1978, 1980 and 2002 that are now a part of EPA's effort to regulate greenhouse gases from stationary sources of emissions. No one anticipated that these previously issued rules would now be used to mandate greenhouse gas permit requirements, but that is the interpretation EPA has adopted. Our legal challenge was consolidated under the case captioned American Chemistry Council v. EPA.

We also filed an administrative petition for reconsideration with EPA on the same rules. Our lawsuits and the administrative petition challenge each of the four older rules to the extent that EPA considers them to allow the regulation of pollutants such as greenhouse gases that are not subject to a National Ambient Air Quality Standard (NAAQS). Our administrative petition goes into great detail regarding the grounds for our request (see Related Documents below). The petitions below also contain the text of the regulations being challenged.

Our main brief on the merits was filed May 10, 2011. The brief focused primarily on the timeliness of the lawsuits and on the fact that EPA’s interpretation of the Clean Air Act is unreasonable and creates absurd results.

Oral arguments are scheduled for Feb. 29, 2012. We argued that Congress intended for EPA to require PSD permits only for facilities that can financially bear the substantial regulatory costs and which, as a group, are primarily responsible for deleterious emissions. The number of permits needed by facilities that meet these criteria was about 280 per year, a number consistent with congressional intent to limit the permit program to a manageable number. The greenhouse gas regulations, however, would require more than 81,000 PSD permits per year, according to the EPA, crushing EPA, state agencies and the economy.

EPA’s reading of the Clean Air Act is unlawful because it severs the link between the PSD permit program and the attainment of national ambient air quality standards (NAAQS). We argued that PSD permits are only required for emissions of a “criteria” pollutant, such as sulfur dioxide, nitrogen oxides or lead, and then only if the emissions occur in an area that has attained compliance with national standards.

EPA’s interpretation also is flawed because it leads to requiring an absurd number of permits. Its interpretation was announced three decades ago, and this is the first time a court has been asked to scrutinize its lawfulness. Only now do sources emitting major amounts of GHGs have to get PSD permits, and now their complaints about EPA’s interpretation are ripe for judicial review.

The purpose of the PSD permitting program is to maintain air quality in areas of the country that have attained satisfactory levels of quality, hence the name "Prevention of Significant Deterioration". EPA sets ceilings for each of a number of specific pollutants, and requires permits for new facilities that might emit more of those pollutants into areas in attainment. Our brief argued that EPA is now forcibly making the PSD permit program an all-purpose regulatory program. However, to do so, we argue that EPA must first define greenhouse gases as criteria pollutants, and specify the maximum levels at which they may be present in attainment areas. It has not done so, and it is arguably impossible to set meaningful NAAQS levels for greenhouse gases.
Related Documents:
NAM Reply Brief  (July 21, 2011)
NAM Opening Brief  (May 10, 2011)
NAM petition to EPA to reconsider PSD rules  (July 6, 2010)
NAM petition re: 2002 PSD & SIP Rule  (July 6, 2010)
NAM petition re: Part 52 Rule (1978)  (July 6, 2010)
NAM petition re: Part 51 Rule (1978)  (July 6, 2010)
NAM petition re: 1980 PSD Rule  (July 6, 2010)

On April 29, 2011, the NAM joined with 10 other associations asking a federal court to review EPA's new regulations on commercial and industrial solid waste incineration (CISWI) units. The rules have the potential to impose additional costs on key industrial sectors. We filed formal petitions in federal court challenging the rules to ensure that, if EPA fails to reconsider its actions, an appeals court panel will have a chance to consider whether EPA acted within the law. Procedural motions and a statement of legal issues in the case are due June 1, and dispositive motions are due June 16. No schedule has been announced for briefing on the merits.

On the same day, we filed a suit challenging EPA's rules establishing stricter emissions limits on industrial, commercial and institutional boilers. For details, see U.S. Sugar Corp. v. EPA (D.C. Cir.).

On May 16, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules "until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier." A new effective date will be published "once delay is no longer necessary." EPA will issue a notice of proposed reconsideration idenfiying specific issues on which it will grant reconsideration. It recognized that industry would need to make compliance investments soon that may not be reversible if the standards are later revised.
Related Documents:
Shopfloor Blog  (May 9, 2011)
NAM Petition for Review  (April 29, 2011)
NAM Petition for Administrative Stay  (April 27, 2011)

On June 16, the NAM filed a petition for review of the EPA’s Non-Hazardous Secondary Materials (NHSM) rule under the suite of Boiler MACT rules. The NHSM rule will classify as solid waste certain “secondary” materials that are currently used as a source of energy, such as coal ash or biomass residues from lumber. Solid waste must be burned in boilers regulated under more onerous rules than apply to fuels. The NAM is concerned with several aspects of the rule, including its effect on the use of non-hazardous materials, its presumption that all non-hazardous secondary materials are solid waste, and other provisions.

A list of legal issues in the case was filed in July, including challenging EPA's presumption that all non-hazardous secondary materials are solid waste, and its definition of "contaminants," "traditional fuels," and "contained gaseous material." Also at issue, among other things, is whether EPA violated the Regulatory Flexibility Act by failing to consider the economic impacts of the rule on small businesses.
Related Documents:
Statement of Issues  (July 8, 2011)
NAM petition  (June 16, 2011)

The EPA has been reconsidering whether to lower the limits on ozone emissions from stationary sources since early in 2010, and engaged in a lengthy reconsideration process. Finally, President Obama called on EPA to put aside their reconsideration of the existing standard. OIRA Administrator Cass Sunstein sent a letter to EPA explaining the reasons that he was sending the proposal back to EPA for reconsideration, including that "a new standard now is not mandatory" and new scientific work is underway and will be based on the best available science. EPA then withdrew its proposed regulation and terminated reconsideration of the March 2008 standards.

The American Lung Association, Environmental Defense Fund, Natural Resources Defense Council and Appalachian Mountain Club sought court review of this decision. The Ozone NAAQS Litigation Group, of which the NAM is a member, moved to intervene in this litigation to support EPA's decision not to change the existing ozone limits at this time. Our participation is needed because EPA represents the "general public interest" and the agency may not adequately represent the interests of manufacturers in avoiding costly and burdensome emissions limitations. On Dec. 1, we filed an opposition to the ALA's motion to coordinate or consolidate this case with Mississippi v. EPA, involving the 2008 ozone standard. We argued that ALA's motion is premature, since EPA is considering filing a motion to dismiss, which, if granted, would moot other issues in the case.
Related Documents:
Motion to Intervene  (November 10, 2011)

The NAM and 17 other business associations moved to intervene in a lawsuit brought by the Center for Biological Diversity (CBD) against the EPA over the agency's interpretation of when greenhouse gases become "subject to regulation" (STR) under the Clean Air Act. CBD is expected to argue that greenhouse gases were already subject to regulation before EPA issued the "Johnson memo" in 2008 and a subsequent STR rule in April, 2010. If such a claim is accepted by a federal court, thousands of members of the business associations could be forced to obtain permits for new or existing facilities and to install costly control technology to try to reduce greenhouse gas emissions.

Related Documents:
NAM motion to intervene  (June 28, 2010)

The NAM is a member of the Ozone NAAQS Litigation Group, which filed a petition for review 5/27/08 in the U.S. Court of Appeals for the D.C. Circuit challenging the validity of the EPA's final regulation lowering certain ozone limits under the Clean Air Act. The American Lung Association, the Natural Resources Defense Council, and others are also challenging the rule, and are expected to argue that the EPA did not follow the advice of their scientific advisers to issue a tougher standard. All the petitions have been consolidated under the caption, Mississippi v. EPA.

On 3/19/09, the D.C. Circuit granted an unopposed motion to vacate the briefing schedule and hold the consolidated Ozone NAAQS cases in abeyance while the new Administration considered whether to change the standards. In September, 2009, EPA reported that it was reconsidering the rule, and proposed revisions in January, 2010, for public comment. It intended to complete this process by the end of 2010. The NAM filed comments in March (see link below).

On April 4, 2011, the court denied our motion to begin briefing those issues that are not the subject of reconsideration, and refused to order EPA to complete its reconsideration proceeding by the July 29, 2011 date by which EPA indicated it planned to take final action. EPA forwarded a final rule to the Office of Management and Budget in July. Five of the petitioners in this case moved 8/8/11 for a court order directing EPA to complete reconsideration immediately. The NAM coalition opposed this motion because the deadline for EPA to review the 2008 Ozone rule has not yet passed, and it need not act by any specific date. We also asked the court again to renew the briefing on this litigation.

On Sept. 2, President Obama announced that he was requesting that Administrator Jackson withdraw the draft ozone standard at this time. OIRA Administrator Cass Sunstein sent a letter to EPA explaining the reasons that he was sending the proposal back to EPA for reconsideration, including that "a new standard now is not mandatory" and new scientific work is underway and will be based on the best available science. Later that day, EPA filed a notice with the D.C. Circuit saying it "no longer expects that it will take final action to complete its reconsideration of the 2008 ozone NAAQS in the near future." It filed a revised motion to govern further proceedings on Sept. 12, seeking to resume briefing.
Related Documents:
NAM Opposition to Motion for Order Directing EPA to Complete Reconsideration  (August 10, 2011)
NAM Cross-Motion to Resume Briefing  (January 10, 2011)
NAM Comments on Reconsideration Proposal  (March 22, 2010)
Ozone NAAQS Litigation Group petition for review  (May 27, 2008)

In February, 2010, the NAM and other business groups filed a petition in federal appeals court challenging the U.S. Environmental Protection Agency’s (EPA) decision to regulate greenhouse gas (GHG) emissions from stationary sources through the Clean Air Act. Joining the NAM on the petition were the American Petroleum Institute, the National Petrochemical & Refiners Association, the National Association of Home Builders, the Corn Refiners Association, the Brick Industry Association, the Western States Petroleum Association and the National Oilseed Processors Association.

On March 18, 2010, a group of 21 industry associations and chambers of commerce filed a motion to intervene in the NAM suit in support of our position. This group represents a wide cross-section of sectors around the country that will be severely affected by EPA's effort to regulation stationary sources of greenhouse gases under the Clean Air Act.

A variety of other business groups and some states also challenged the endangerment finding. Some of these groups asked the EPA directly to reconsider its finding, but the agency turned down the request in July, 2010. In the endangerment case, industry's opening brief was filed on May 20, 2011. Because the court required that all non-state petitioners and intervenors file only one brief, the views of 80 parties were consolidated, and the resulting brief includes disparate arguments from a variety of interests.

The brief explains that EPA does not say what constitutes a “safe climate,” acceptable global temperature ranges, or “safe” levels of GHGs in the atmosphere, nor will anyone be able to judge whether or when EPA has ever achieved a congressionally defined goal. EPA will not be able to say that its action will reduce global temperatures or that a temperature reduction will avoid an actual danger to public health and welfare.

The brief focused on, among other things, key EPA errors relating to (1) construing its authority to produce absurd results, (2) failing to provide a rational basis for determining whether GHG regulations will mitigate a defined public health or welfare risk, (3) lumping together six pollutants without making separate determinations about the effects of each, (4) failing to consider future mitigation and adaptation steps that impact whether health and welfare are endangered, and (5) failing to follow statutory procedures, including consultation with its own Science Advisory Board.

Congress did not intend for EPA’s endangerment finding to produce absurd results, yet that is the effect of EPA’s finding. The EPA should not have used the endangerment finding to cause PSD permitting requirements, since those requirements apply to emissions whose harm is concentrated in a particular geographic area. It should have adopted a more restricted reading of the statute, instead of a broad reading that would be narrowed by the absurd results doctrine.

We also argued that EPA has no rational basis for treating all six GHGs from motor vehicle emissions as a single air pollutant. Automobiles do not emit 2 of the six pollutants, and each of the pollutants that are emitted has radically different heat-trapping properties. In addition, EPA’s use of a “CO2 equivalent” as a proxy for regulation of each gas individually unlawfully avoids have to make endangerment findings for five of the six GHG air pollutants it seeks to regulate.

EPA also refused to consider “whether any harms from the regulated emissions will be independently averted or mitigated.” The agency also ignored emissions reductions that will occur from implementation of the Energy Independence and Security Act of 2007.

EPA's response was filed on Aug. 18, 2011. The agency argued that the administrative record was sufficient, that it reasonably classified six gases on one pollutant, and that it did not need to consider costs, administrative burdens, benefits or mitigation when making its endangerment finding. It also argued that it was not required to submit the proposed finding to the Science Advisory Board for review, and that complaints that it did not do so came too late in the process.

This litigation is one of many suits by the NAM and our coalition partners against EPA's attempt to regulate GHGs. In one, we challenged the agency’s interpretation of the so-called “Johnson Memo,” where EPA stated for the first time that it would apply controls on greenhouse gas emissions on a wide range of manufacturing and other stationary sources. See our summary in NAM v. EPA described as "Challenging EPA's STR interpretation". We subsequently filed additional suits challenging EPA's tailoring rule, tailpipe rule, and other rules being used to regulate stationary sources of greenhouse gases.

On September 26, 2011, the EPA's Inspector General issued a report in part finding that EPA did not make an independent assessment of key scientific evidence that it relied on in issuing its endangerment finding. We then asked the court to take judicial notice of the report. Public documents that are not already in the record of a case may be considered by a court, and we brought this development to the court's attention because it is directly relevant to EPA's claim in court that it exercised independent judgment when reviewing the scientific evidence.

Oral arguments are set for Feb. 28, 2012.
Related Documents:
NAM Request for Judicial Notice of EPA Inspector General's Report  (September 30, 2011)
Petitioners' Opening Brief  (May 20, 2011)
NAM Joint Briefing Proposal  (January 10, 2011)
Summary of NAM's Challenges to EPA's Greenhouse Gas Regulations  (August 30, 2010)
NAM Nonbinding Statement of Issues  (April 15, 2010)
NAM Docketing Statement  (April 15, 2010)
NAM Petition for Review  (February 16, 2010)
NAM Press Release  (February 16, 2010)

On June 1, the NAM and other business organizations filed suit against EPA's latest interpretation of the so-called “Johnson Memo,” where the Agency stated for the first time that it will apply controls on greenhouse gas emissions on a wide range of manufacturing and other stationary sources beginning on January 2, 2011. This is the second piece of litigation against the EPA, which has issued 4 rules and interpretations that all combine to set limits on stationary sources of greenhouse gas emissions. Manufacturing facilities are among many sources of such emissions, and legal challenges must be filed now even though enforcement against many of these sources will not occur immediately.

The complaint merely states that the NAM and the other business organizations are challenging the EPA's latest action.

This case is related to our challenge to EPA's endangerment finding. See our summary in NAM v. EPA described as "Challenging EPA's endangerment finding".

On Sept. 15, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December, and we are awaiting a briefing schedule on the merits.
Related Documents:
NAM/Industry brief  (June 20, 2011)
NAM reply in support of partial stay  (November 8, 2010)
NAM motion for partial stay  (September 15, 2010)
NAM's Non-Binding Statement of Issues  (August 30, 2010)
NAM Press Release  (June 2, 2010)
NAM Petition to Review STR Rule  (June 1, 2010)

On July 6, 2010, the NAM and 15 other business associations filed a petition for review in the D.C. Circuit challenging the EPA's final regulation of light-duty motor vehicles, also known as the Section 202 motor vehicle rule or the tailpipe rule. EPA has announced that this rule, which regulates greenhouse gases from certain motor vehicles, was effective on January 2, 2011. The rule thus established the first EPA regulation of greenhouse gas emissions, and the agency previously announced that once a pollutant is regulated, the usual permit requirements of the PSD program (Prevention of Significant Deterioration) kick in. As a result of this combination of interpretations, EPA has begun to regulate stationary sources of greenhouse gas emissions such as manufacturing facilities around the country.

Our lawsuit is the third in a series of suits challenging four EPA rules that together implement the greenhouse gas regulatory program. Our fundamental concern is over EPA's decision to automatically trigger PSD regulation of all stationary sources.

On Sept. 15, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December.

On June 3, 2011, the NAM and 66 other parties filed a combined brief, as required by court order, detailing all the key arguments arising from the motor vehicle rule. Section 202 of the Clean Air Act requires EPA to justify the level of emissions controls imposed by explaining why those controls represent a rational choice in light of the identified endangerment risk. However, EPA said that it had no obligation to show that its regulations would be effective or reduce harm. It failed to justify its interpretation that the light-duty motor vehicle rule triggers stationary source regulations, and failed to address the enormous burdens and costs imposed on stationary sources.

The motor vehicle regulation arises under Title II of the Clean Air Act, while the regulation of stationary sources of emissions is governed by Title I, which focused on local emissions in defined geographical areas causing elevated ground-level exposures to a pollutant. EPA failed to exercise its discretion to limit the scope of the pollutants subject to the Title I, Part C PSD program, as it has done in another context -- the visibility program under the state part of the Clean Air Act.

We also argued that EPA failed to address the “absurd consequences” that the motor vehicle rule produces for stationary sources of greenhouse gas emissions. Had it done so, EPA could have avoided those consequences by adopting a more reasonable interpretation of the Clean Air Act. Instead, it told the regulated community to address the stationary-source consequences of its regulation of greenhouse gases in the tailoring rule proceeding, but then refused to address the stationary source impacts in the tailoring rule, because that rule provided only relief and did not impose costs. This failure to consider the stationary-source impacts violates Section 202 of the Clean Air Act and is inconsistent with multiple mandates from Congress and the President.

The brief itemizes several statutes and orders mandating that EPA consider economic effects: (1) Section 317 of the Clean Air Act, which requires an economic impact assessment, (2) the Regulatory Flexibility Act, which requires an analysis of effects on small businesses, (3) the Unfunded Mandates Reform Act, which requires an assessment of the impact on state and local governments, (4) the Paperwork Reduction Act, which requires OMB approval for significant information-collection obligations, (5) Executive Order 12898, which requires addressing disproportionate effects on minority and low-income populations, and (6) Executive Order 13211, which requires an assessment of a rule’s impact on energy supply, distribution and use.

The brief also argues that EPA has not demonstrated that the final rule will meaningfully and substantially reduce any endangerment to public health or welfare. It adds virtually no additional benefits to already existing fuel economy standards issued by the National Highway Transportation Safety Administration (NHTSA).

Oral arguments are set for February 29, 2012.
Related Documents:
NAM/Industry brief  (June 3, 2011)
NAM reply in support of partial stay  (November 8, 2010)
NAM motion for partial stay  (September 15, 2010)
NAM statement of issues  (August 30, 2010)
NAM petition for review  (July 6, 2010)

On August 2, the NAM and 16 other business associations filed a petition for review in the D.C. Circuit challenging the EPA's final regulation that sets out its schedule for enforcing regulatory controls on greenhouse gas (GHG) emissions from stationary sources. The agency has previously announced that greenhouse gas emissions are subject to regulation beginning January 2, 2011, and the usual permit requirements of the PSD program (Prevention of Significant Deterioration) kick in. Because there are millions of facilities that fall under EPA's regulatory requirements, the agency has adopted the tailoring rule to focus its initial enforcement only on facilities with the largest amounts of GHG emissions.

This is the last of eight petitions filed by the NAM coalition of business organizations challenging EPA's efforts to regulate stationary sources of greenhouse gases. For the next few months, the D.C. Circuit will be sorting out the many challenges filed by numerous business groups, environmental groups and states, and will develop a briefing and argument schedule.

Our lawsuit is the third in a series of suits challenging four EPA rules that together implement the greenhouse gas regulatory program. Formal documents outlining the specific legal issues will be submitted later, but our fundamental concern is over EPA's decision to automatically trigger PSD regulation of all stationary sources.

On Sept. 15, the NAM coalition filed a motion for a partial stay of the regulation of greenhouse gases from stationary sources of emissions. The court denied this motion in December.

On June 20, 2011, the NAM and several other industry associations filed the fourth major legal brief challenging the EPA’s regulation of greenhouse gas emissions. This brief argues, in part, that the EPA’s tailoring rule essentially rewrote parts of the Clean Air Act by changing clear, congressionally established numerical thresholds for pollutants that are subject to regulation. The brief reiterates that the Clean Air Act was never meant to regulate GHGs. As a result, the rules should be vacated and remanded.

Oral arguments in the case are set for Feb. 28, 2012.
Related Documents:
NAM Reply brief  (November 16, 2011)
NAM/Industry brief  (June 20, 2011)
NAM reply in support of partial stay  (November 8, 2010)
NAM statement of issues  (September 15, 2010)
NAM motion for partial stay  (September 15, 2010)
NAM petition for review  (August 2, 2010)

In the Deseret Power decision in 2008, the EPA Environmental Appeals Board rejected the Sierra Club's contention that preconstruction permits for new power plants must include "best available control technology" (BACT) for carbon dioxide, but sent the case back to the EPA to reconsider whether to impose the requirement under its discretionary authority, and to develop an adequate record for its decision. It encouraged the EPA to consider whether the issue in this case should be resolved "in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

On Sept. 14, 2010, the court ordered the case held in abeyance pending the outcome of other greenhouse gas cases, and EPA will be providing status reports every 90 days. Former EPA Administrator Stephen Johnson issued an interpretative guidance memorandum on Dec. 18, 2008, that concluded that PSD permits (for the Prevention of Serious Deterioration of air quality) do not need to include BACT limits for greenhouse gases. The Sierra Club challenged that guidance, while the NAM and other business organizations supported it. If the environmental groups succeed, the number and type of facilities (e.g., any which emit certain levels of CO₂) requiring EPA permits would explode, resulting in an impassable regulatory gridlock that would overwhelm permitting authorities and bring new permits to a halt. Under such a scenario, even large department stores, schools, and medium-size office buildings would require Clean Air Act preconstruction permits in order to be built or expanded.

Our motion to intervene, filed 2/13/09, outlined why this case will have a substantial impact on many manufacturers, and why the EPA, which represents the general public interest, will not adequately represent the interests of the business community.

On Feb. 17, 2009, EPA Administrator Lisa Jackson granted a Sierra Club petition for reconsideration of the Johnson memo, and permitted public comment on the matter. The D.C. Circuit has stayed the litigation.

On April 2, 2010, EPA completed its reconsideration of the Johnson memo and published a new "Subject to Regulation" notice that makes January 2, 2011 the date on which greenhouse gas emissions are regulated. On June 9, EPA asked the court to hold the case in abeyance while other litigation over its GHG regulation is resolved. The NAM opposed this motion, saying that the issues in this case are being addressed in other greenhouse gas cases, and the environmental groups here should not be allowed to have a second chance to litigate should they lose in those other cases. We also opposed an effort to allow the Center for Biological Diversity to switch its challenge from those cases into this one, as that could create competing panels of judges reviewing the same issues. The EPA proposal might create inconsistent rulings, confusion and uncertainty, and is very inefficient.
Related Documents:
NAM Opposition to EPA's Procedural Motion  (June 22, 2010)
NAM Motion to Intervene  (February 13, 2009)

The NAM and other groups moved to intervene in a law suit brought by the Sierra Club against EPA over the agency's decision to delay the effective date of new regulations on boilers and incinerators. The rules, issued on March 21, 2011, concern major source industrial boilers and commercial and industrial solid waste incinerators. When it published the rules, EPA announced that it would initiate administrative reconsideration of them, and later delayed the effective dates during the reconsideration period. Our intervention in this case is intended to support the EPA's decision to delay implementation.

At the same time, the NAM is challenging the boiler MACT and incinerator rules themselves. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors, and they force companies to make compliance investment decisions well in advance of their effective dates.
Related Documents:
NAM Motion to Intervene  (August 15, 2011)

The NAM is part of the SIP/FIP Advocacy Group, which comprises various national trade associations challenging EPA's efforts to require states to implement its greenhouse gas stationary source regulatory requirements. This suit is in response to EPA's decision, published May 3, 2011, partially disapproving Texas' implementation plan for regulating pollution. EPA rejected part of the Texas plan because it did not address how it would apply to pollutants that become "subject to regulation" in the future, such as greenhouse gases. Because it rejected the Texas plan, EPA moved to implement federal regulation of greenhouse gas emissions in Texas.

The State of Texas and other parties also filed suit against EPA, and our case has been consolidated with those. Preliminary proceedings are under way.
Related Documents:
NAM Petition for Review  (July 5, 2011)

In December, 2010, EPA announced its Finding of Substantial Inadequacy and SIP Call Rule for greenhouse gas emissions. It found that the laws of 13 states do not authorize them to regulate GHG emissions as is required as of January 2, 2011, and EPA requires those states to change their laws and submit revised State Implementation Plans (SIPs) for review and approval. In the meantime, EPA will use its own Federal Implemenation Plan (FIP) to regulate GHGs. The affected states are Arkansas, Arizona, parts of California, Connecticut, Florida, Idaho, Kansas, Kentucky, Oregon, Nebraska, Nevada (Clark County), Texas, and Wyoming.

The NAM and other associations that are part of the SIP/FIP Advocacy Group have petitioned two federal appeals courts to review EPA's action. This is another step in our overall challenge to EPA's efforts to regulate greenhouse gases under the Clean Air Act. We filed comments with EPA when this action was proposed, arguing that EPA's own regulations give the states 3 years to comply with the new greenhouse gas requirements, and that the state implementation plans are not "substantially inadequate" to enforce the new requirements.

A similar case was filed in the U.S. Court of Appeals for the Fifth Circuit. It was transferred to the D.C. Circuit. On 7/6/11, the court consolidated the cases into one but denied EPA's request that it be held in abeyance pending resolution of the main challenges to their greenhouse gas regulations. A briefing schedule will be
Related Documents:
NAM petition for review (5th Cir.)  (February 11, 2011)
NAM petition for review (D.C. Cir.)  (February 11, 2011)

The NAM and four other business organizations filed an amicus brief supporting the State of Texas in its lawsuit seeking an emergency stay of EPA’s decision partially revoking the State’s permitting authority under its Clean Air Act implementation plan. EPA took over the Texas permitting authority without notice-and-comment rulemaking on the premise that without intervention many stationary sources of greenhouse gas emissions in Texas would have to forgo construction and modification in 2011. Bu there is no construction ban in Texas, and EPA's intervention is not needed to prevent one.

EPA took the action in late December, 2010, after the Texas Clear Air Act implementation plan had been on the books for 18 years. EPA believes that its new greenhouse gas rules require large stationary sources of GHG emissions to obtain PSD (Prevention of Significant Deterioration) permits before beginning construction or undertaking modifications of their facilities. Most states automatically incorporate new EPA pollutants in their state plans, but Texas does not, and EPA believes Texas will not act promptly to do so. Our brief, however, argues that PSD permit requirements are not automatically incorporated into a state's implementation plan. Thus, a court may stay EPA's latest regulatory control tactic without interfering with the continuing process by which Texas issues construction and modification permits for stationary sources of emissions.

On Jan. 12, 2011, the Court granted our motion to file an amicus brief, but denied the motion for a stay. EPA's regulatory action will continue in force until the court makes a final decision on the challenge to the regulations.
Related Documents:
NAM amicus brief  (January 6, 2011)

On April 29, 2011, the NAM joined with 12 other associations asking a federal court to review EPA's Boiler MACT (Maximum Achievable Control Technology) standard. The rules have the potential to dramatically impact the U.S. economy and impose enormous costs on key industrial sectors. We filed formal petitions in federal court challenging the rules to ensure that, if EPA fails to reconsider its actions, an appeals court panel will have a chance to consider whether EPA acted within the law. The lawsuit, filed by a coalition of associations including the NAM, was consolidated with U.S. Sugar Corp. v. EPA (D.C. Cir.). Procedural motions and a statement of legal issues in the case were due June 30. No schedule has been announced for briefing on the merits.

On the same day, we filed a suit challenging EPA's rule establishing stricter emissions limits on commercial and industrial solid waste incineration (CISWI) units. For details, see American Forest & Paper Ass'n v. EPA (D.C. Cir.).

On May 16, 2011, EPA announced that it was reconsidering and delaying the effective dates for the Boiler MACT and CISWI rules "until the proceedings for judicial review of these rules are completed or the EPA completes its reconsideration of the rules, whichever is earlier." A new effective date will be published "once delay is no longer necessary." EPA will issue a notice of proposed reconsideration idenfiying specific issues on which it will grant reconsideration. It recognized that industry would need to make compliance investments soon that may not be reversible if the standards are later revised.

On August 3, the D.C. Circuit ordered this case to be held in abeyance indefinitely. In the meantime, the Sierra Club is challenging EPA's delay of the effective dates in separate litigation here. The NAM has moved to intervene in that suit.
Related Documents:
Shopfloor Blog  (May 9, 2011)
NAM Petition for Review  (April 29, 2011)
NAM ManuFACT  (April 29, 2011)
NAM Petition for Administrative Stay  (April 27, 2011)
Press Release  (February 23, 2011)

As part of our continuing efforts to make sure that EPA does not exceed its authority in the regulation of greenhouse gases from stationary sources of emissions, the NAM and 15 other business organizations in our coalition has moved to intervene in a lawsuit brought by an environmental group challenging EPA's power to focus on the largest emitters first. If the environmental group is successful, EPA and various states may be required to apply much more stringent criteria to permitting programs, which could impose enormous costs from foregoing operations or installing emission-control technology. Our motion to intervene does not concede that EPA's decision to regulate greenhouse gases is legally permissible.

The Center for Biological Diversity (CBD) sought a court order holding this case in abeyance pending resolution of other challenges to the tailoring rule, but the court rejected that request on June 15, 2011. The next day, CBD voluntarily moved to dismiss this case.

The NAM and other organizations have also filed a separate petition to review the EPA's tailoring rule. For a complete listing of NAM cases against EPA, click here.
Related Documents:
NAM motion to intervene  (August 30, 2010)

On January 5, 2010, EPA published guidance to the states that allows them to waive fees under Section 185 of the Clean Air Act relating to compliance with ozone emissions regulations. The guidance assists states in preparing their own State Implementation Plans. It allows states to either use the Section 185 fee program or "an equivalent alternative program" that is "consistent with the principles of section 172(e)" of the Clean Air Act.

NRDC sued EPA in March, and will argue that EPA's action allowing an equivalent, alternative program is arbitrary and capricious, and that allowing fee waivers if an ozone nonattainment area meets an 8-hour testing standard instead of a 1-hour standard is also improper. An 8-hour standard is more protective of the environment than a 1-hour standard.

In April, the NAM and 4 other business groups moved to intervene in this suit in support of EPA. That motion was granted. The case affects fees that are currently set at $8,766 per ton of volatile organic compounds and nitrogen oxides emitted above a baseline amount from major stationary sources within areas of the country that are classified as severe or extreme nonattainment areas.

The NAM and other intervenors filed a brief on Jan. 31, 2011, arguing that EPA's interpretation is reasonable and consistent with congressional intent. It is important that states have the flexibility to design equivalent alternative programs that do not unfairly and inappropriately penalize well-controlled major stationary sources of ozone. Companies that have already dramatically reduced ozone emissions are unable to make further reductions without a harmful drop in productivity, and states should be able to develop alternative programs that focus on sources that are better able to achieve further reductions.

On July 1, the court rejected EPA's arguments that the plaintiffs lacked standing, that the Guidance does not qualify as final agency action, and the plaintiffs' claims are unripe for judicial review. It then ruled that the Guidance qualified as a legislative rule that EPA was required to issue through notice-and-comment rulemaking, and that one of its features -- the "attainment alternative" -- violates the plain language of the Clean Air Act. The court vacated the EPA's guidance and ruled that it could not offer an alternative that allows violations of the old 1-hour standard to continue. The law does not allow EPA to retreat from requirements it sets that prove to be too stringent and unnecessary to protect public health, and EPA must go back to Congress if it wants to do so.
Related Documents:
NAM brief  (January 31, 2011)
NAM motion to intervene  (April 5, 2010)

The NAM is part of the SSM Coalition, named for EPA's new Clean Air Act regulations governing special circumstances often present during startup, shutdown or malfunction (SSM) of process equipment or pollution control equipment. On Jan. 4, 2011, the Coalition moved to file an amicus brief in litigation brought by the Portland Cement Association which challenges 2 EPA regulations governing Portland Cement plants. Our particular interest is the rule which establishes national emission standards for hazardous air pollutants (NESHAPs) under Section 112 of the Act.

EPA's new approach to establishing NESHAPs and its novel interpretations of Section 112 apply not only to the portland cement case, but it plans to adopt similar requirements for a variety of other sectors, including chemical plants, pulp and paper mills, steel pickling operations and wood furniture manufacturing.

The court granted permission to file an amicus brief, and we did so on May 23, 2011. The brief argued that EPA's MACT standard cannot be met by any existing facility and that EPA's standard does not satisfy the statutory requirement that it be achievable.

We also argued that EPA did not justify its decision to no longer recognize the special circumstances that arise during equipment malfunctions. Reasonable performance standards should recognize that sudden, unexpected failures of a manufacturing process or pollution control technology are not part of a source's normal operating mode, and should not be subject to harsh EPA penalties when they occur. EPA could have considered alternatives, such as work practice standards, that would address deviations from normally achievable emissions standards that may occur during periods of malfunction.

Finally, we argued that EPA should have recognized that differences in the source of raw materials makes compliance with a uniform national MACT standard difficult or impossible. It was arbitrary and capricious for EPA fail to make allowances for emissions based on the sources of supply.

On Dec. 9, 2011, the court remanded the NESHAP rule to EPA for reconsideration, but rejected all other issues that challenged EPA's actions.
Related Documents:
NAM brief  (May 23, 2011)
NAM Motion to File Amicus Brief  (January 4, 2011)

The NAM is part of the Fine Particulate Matter Petitioners Group, which filed a petition for review in the D.C. Circuit of a final EPA regulation published in October, 2006, entitled "National Ambient Air Quality Standards for Particulate Matter." This case involves stringent new EPA air quality standards, which industry and agricultural groups say go too far and environmental groups and states say are not strict enough.

The regulation applies both to fine particles (generally smaller than 2.5 micrometers in diameter) and to larger particles (less than 10 micrometers). It retains an annual fine particle standard of 15 micrograms per cubic meter, and ratchets down the daily standard from 65 to 35 micrograms per cubic meter. It retains the 150 micrograms level for daily exposure to larger particles. The agriculture and mining industries are not exempt.

The new standard is expected to increase the number of nonattainment areas around the country significantly. Our challenge focused primarily on the fine particle portion of the rule.

Also included in the Fine Particulate Matter Petitioners Group are the American Coke & Coal Chemicals Institute, the American Forest & Paper Association, the American Iron & Steel Institute, the Chamber of Commerce, the Corn Refiners Association, the National Cotton Council of America, the National Oilseed Processors Association and the Portland Cement Association. Our petition was consolidated with others from the American Lung Association and other environmental groups, the National Mining Association, the National Cattlemen's Beef Association, 13 states, the Agricultural Retailers Association, the Utility Air Regulatory Group and others.

On Jan. 29, 2008, we filed a brief supporting EPA's decision to keep the fine particulate matter standard at 15 micrograms per cubic meter. It properly kept the limit at 15 because the risk attributed to that level of ambient exposure has stayed the same or decreased since EPA established that standard in 1997. EPA also properly set the secondary fine particulate matter standard at a level identical to the primary standards, providing increased visibility protection and providing the requisite level of public welfare protection.

We opposed a challenge to the standard that argued the EPA should have adopted recommendations of the Clean Air Scientific Advisory Committee (CASAC), because the Clean Air Act only allows that group to recommend revisions and the ultimate decision is in the discretion of the EPA Administrator.

On Feb. 24, 2009, the D.C. Circuit remanded the fine particulate standard to the EPA, as well as the EPA's decision to equate the primary and secondary fine particle standards, but upheld the coarse particulate standard. The court ruled that "the EPA did not adequately explain why an annual level of 15 μg/m3 is sufficient to protect the public health while providing an adequate margin of safety from short-term exposures and from morbidity affecting vulnerable subpopulations." It noted in particular three short-term studies that the EPA did not adequately explain away. During the remand, EPA's rule will remain in effect. It also found that EPA acted unlawfully when it failed to determine what level of visibility protection was needed to protect the public welfare. EPA's failure to set a target level of visibility was fatal to the standard it set.

With respect to an industry challenge to the regulation of coarse particulate matter, the court said that EPA need not wait for conclusive evidence of adverse health effects before regulating. It rejected the challenge and upheld this portion of EPA's regulation.
Related Documents:
Fine Particulate Matter Interest Group's brief  (January 29, 2008)

The NAM is a member of the CO₂ Litigation Group, which was an intervenor helping to defend EPA in this case. Massachusetts sought a court mandate to force EPA to determine that carbon dioxide is an air pollutant that contributes to air pollution "which may reasonably be anticipated to endanger public health or welfare."

We filed a brief 5/15/08 arguing that no such finding is required by the statute unless EPA decides to establish emission standards for new motor vehicles, nor is there any deadline for making such a determination. No clear statutory rights are being harmed by any delay by EPA, and EPA has announced an intention to begin a rulemaking later this spring anyway.

We argued that EPA must be able to consider this proposed rulemaking in the larger context of other regulatory obligations with respect to fuels used in motor vehicles and nonroad engines, as well as new or modified major stationary sources of emissions, comprising perhaps thousands of new facilities not currently subject to stringent Clean Air Act permit requirements.

Climate change from carbon dioxide must be addressed in a comprehensive way with input from the public through the legislative and regulatory processes, not through a judicial directive that truncates public debate.

On June 26, the court denied Massachusetts' petition without opinion, except for a statement by Judge Tatel concurring in part and dissenting in part. He would hold on to the case until EPA gives greater indication that it is moving forward with the regulation. The EPA announced in March that it would issue an Advance Notice of Proposed Rulemaking sometime in the future.
Related Documents:
CO₂ Litigation Group brief  (May 15, 2008)

The NAM, the American Chemistry Council, the American Forest and Paper Association and the American Petroleum Institute filed joint motions to intervene to help defend the EPA against two suits brought by the ALA and 3 environmental groups over some of its Clean Air Act rules. The rules relate to issues that were reconsidered by the EPA as a result of earlier litigation, and are entitled, “Nonattainment Major New Source Review Implementation Under 8-Hour Ozone National Ambient Air Quality Standard: Reconsideration,” and “Implementation of the 8-Hour Ozone National Ambient Air Quality Standard – Phase 1: Reconsideration.” Industry supports the new rules because they provide reasonable answers to questions relating to the implementation of tougher clean air requirements. First, since the old system of measuring emissions has been revoked, the new rules do not mandate certain contingency measures if an area of the country does not meet those old standards. Second, even though the old standard has been revoked, portions of it remain in place and there are new ways to demonstrate compliance with the standard. Third, new source review permitting requirements will be triggered based on the new 8-hour standard, which generally will apply to fewer facilities.

For further details, see South Coast Air Quality Management District v. EPA.

The NAM is a member of the Equipment Replacement Rule Coalition, which filed a brief 12/9/05 in a suit brought by the State of New York against the EPA over the agency's 10/27/03 final rule titled "Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion." This rule governs the factors that determine whether companies must obtain EPA permits before replacing broken or deteriorating equipment at their industrial facilities. New York challenged the rule as too lenient. The Equipment Replacement Rule Coalition, comprising various trade associations, manufacturers and utilities, generally support the EPA's new rule.

Our brief on the merits argued that EPA has discretion under the Clean Air Act to issue the rule, and that major modifications are not any physical plant changes, but only those that increase an existing unit’s design capacity to emit.

On 3/17/06, the Court vacated the rule. It decided that the Clean Air Act’s permit requirements for “any physical change” do not allow the EPA to expand the category of projects that it views as “routine replacement.” The only exceptions are projects that do not result in emissions increases or that are de minimis. The decision leaves the existing Routine Maintenance, Repair and Replacement Exclusion in place.

The NAM is part of a joint industry effort to support the Environmental Protection Agency’s 8-Hour Ozone Phase I Implementation Rule. Since enactment of the Clean Air Act in 1990, EPA has been working to implement provisions that establish ozone control requirements and deadlines for compliance. First it established a standard based on a 1-hour measurement system, with 5 classifications of violations (marginal, moderate, serious, severe or extreme). In 1997, EPA replaced the 1-hour standard with a more stringent standard with an 8-hour averaging time, and, after court challenges that went to the Supreme Court, again modified the regulation to provide different compliance timetables depending on the levels of ozone in a particular area.

The State of Ohio sued to delay the 8-hour standard and to force EPA to adopt more reasonable deadlines. It feared that implementation will require the “depopulation strategy,” whereby all local industry must shut down and all local vehicle traffic must be stopped in the Cleveland-Akron area. The Baton Rouge Chamber of Commerce sued to eliminate enforcement under the old 1-hour standard. The American Lung Association, the Natural Resources Defense Council and others, sued to force the use of specific timetables for implementation and to prevent companies from backsliding from the old standard. The NAM and other industry groups intervened in these suits to generally support the EPA’s latest efforts.

Our brief argued that the EPA’s balance of compliance requirements involving either the old 1-hour standard or the tougher 8-hour standard is valid. Nothing in the Clean Air Act requires old standards to remain in effect in perpetuity. Since the old standard was revoked, penalties should not continue to be assessed under that system. We supported EPA’s determination that an area subject to the 8-hour measuring standard should be subject only that the new classification system that goes with it.

On December 22, 2006, the D.C. Circuit vacated the rule and remanded the matter to EPA for further proceedings. The court upheld EPA's decision to revoke the 1-hour ozone standard, but imposed substantial restraints. It struck down EPA's decision classifying nonattainment areas under the generally less demanding Subpart 1 (of Part D of Title I), instead ruling that areas with 8-hour "design values" (the measured concentration of ground-level ozone) above .09 ppm must be classified under Subpart 2. It called EPA's decision to apply only Subpart 1 requirements to areas with 8-hour design values between .08 ppm and .09 ppm unreasonable. In addition, EPA's rules were designed to prevent "backsliding" by regulated industries, and the D.C. Circuit ruled that several requirements continue to apply (such as New Source Review requirements, section 185 emission fees, contingency plans for failure to improve, and local transportation planning restraints).

Until further word from EPA, the new 8-hour designation/classification system was vacated, but the designations/classifications themselves were in a separate rule that was not vacated. Thus, those designations and classifications apparently remain in effect, with State Implementation Plans due in June. In addition, the anti-backsliding provisions under the 1-hour rule are still in effect.

On March 22, 2007, the NAM joined with other organizations in a petition for rehearing. We argued that the court's decision expands EPA's Section 172(e) authority to prevent companies from backsliding on ozone pollution limits. We argued that the backsliding provision applies only if air quality standards are relaxed, and the EPA in fact issued revised standards that are more stringent. In addition, existing case precedent requires that courts defer to EPA interpretations that are reasonable. The court's decision second-guessed the EPA's interpretation, and conflicts with that of another federal appeals court. The petition for rehearing was denied 6/8/2007.

These cases were filed in 2003 by 12 states and various environmental and other organizations to force the Environmental Protection Agency to regulate greenhouse gases (carbon dioxide, methane, nitrous oxide and hydrofluorocarbons) from new motor vehicles as pollutants. The EPA and 10 other states opposed the suits, and the CO2 Litigation Group, of which the NAM is a member, intervened. On 7/15/05, the D.C. Circuit issued a splintered decision allowing the EPA to continue to decline to regulate greenhouse gases. Judge Randolph ruled that the EPA had discretion and a scientific justification not to regulate greenhouse gases, and, although Judge Sentelle refused to reach this issue, he ruled that the petitioners did not have standing to bring the case. Thus, the EPA’s decision stands. Judge Tatel dissented, arguing that the EPA does have the authority and has failed to give an adequate explanation for not regulating greenhouse gases. Whether the EPA is mandated by statute to regulate greenhouse gases is unresolved. It has declined to do so at this point. The NAM does not believe the EPA has this authority, nor is there sufficient evidence that emissions of greenhouse gases from domestic automobiles endanger public health or welfare.

The NAM is one member of a coalition of associations known as the NSR Manufacturers Roundtable which filed a motion 1/15/03 to intervene in a suit brought by NY, CT, ME, MD, MA, NH, NJ, RI and VT against the EPA's final regulation governing the procedures for companies to install stringent emission controls at their facilities under the Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR) provisions of the Clean Air Act. These states challenged the legality of EPA's rule, and the NSR Manufacturers Roundtable intervened to insure that the court considers the views of manufacturers and the effects of the rule on industry. The Roundtable includes the Alliance of Automobile Mfrs., the American Chemistry Council, the American Forest & Paper Assn., the American Iron and Steel Institute, American Petroleum Institute, the Council of Industrial Boiler Owners, National Mining Assn., the National Petrochemical & Refiners Assn., the Portland Cement Assn. and the NAM.

The NSR Manufacturers Roundtable’s first brief (filed 5/11/04) challenged EPA language in the rule’s preamble and argued that the statutory language, as well as the history of its enforcement, makes clear that the first step of the analysis of whether there is a change to an existing emissions unit at a stationary source is the requirement that the emitting capacity of the existing unit must be increased (i.e., that “new pollution” be created) by the change.

An 8/30/04 brief supported the EPA’s methodology for determining whether annual emissions have significantly increased.

The D.C. Circuit issued a mixed ruling on 6/24/05. It upheld some of the EPA’s decisions, vacated others, and rejected as not ripe industry’s challenge to the rule’s preamble language on the “actual-to-potential” methodology. The court’s main rulings are:

This litigation by the NAM and other business groups against the EPA went all the way to the U.S. Supreme Court in 2001 (see Whitman v. American Trucking Associations, Inc.) . The Court remanded it to the D.C. Circuit for further proceedings regarding the validity of EPA's standard for ozone and particulate matter. On 3/26/02, the D.C. Circuit found that the EPA's 1997 NAAQS rules for PM2.5 and ozone are neither arbitrary nor capricious. The Court denied petitions for review except to the extent the Supreme Court’s 2001 decision and the D.C .Circuit’s 1999 decisions require further action by the EPA.

The D.C. Circuit began by pointing out that its earlier decisions addressed only whether the Clean Air Act (or the EPA’s reading of the CAA) adequately limits the EPA’s discretion. However, the 3/26 decision involves whether the EPA reasonably exercised its discretion under the CAA. The Court found that the agency was not arbitrary and capricious in promulgating either rule.

With respect to PM2.5, the Court said that the EPA need not “identify perfectly safe levels of pollutants” and need not “definitively identify pollutant levels below which risks to public health are negligible.” Importantly, the Court also rejected environmental groups’ challenges to the PM2.5 standard as insufficiently stringent.

On ozone, the Court found that the EPA had a basis for its conclusion that the existing one-hour standard was inadequate. Based on the rulemaking docket, the Court concluded that the EPA’s choice of the 0.08 parts per million level was not arbitrary and capricious. Earlier holdings that the 8-hour ozone implementation policy is unlawful and that the EPA must consider evidence of ground-level ozone’s beneficial effects are left undisturbed by this ruling.

The NAM and 12 other organizations sued the EPA on March 17, 2000. Its petition for review challenged the EPA's interim guidance on the definition of federally permitted releases for air emissions. As a result of the suit, the EPA suspended the Interim Guidance on 5/19/00 in a motion to the court.

On 4/17/02 the Environmental Protection Agency (EPA) published its "Guidance on the CERCLA Section 101(10)(H) Federally Permitted Release Definition for Certain Air Emissions." This guidance supersedes the December 17, 1999 Interim Guidance, which is now deemed to be withdrawn. The NAM praised the new guidance in a press release.

The new guidance clarifies the discussion of volatile organic compounds (VOCs) and particulate matter (PM) limits and controls and when releases of hazardous substances which are constituents of these pollutants could qualify for the FPR exemption under CERCLA [Comprehensive Environmental Response, Compensation, and Liability Act] and EPCRA [Emergency Planning and Community Right-to-Know Act]. The Guidance also adds a section addressing nitrogen oxide (NO) and nitrogen dioxide (NO2). The guidance also discusses certain releases from minor sources and announces a forthcoming guidance document that addresses grandfathered sources.

The lawsuit was dismissed voluntarily.

The NAM filed suit against the EPA 4/10/98 arguing that an EPA rule improperly granted Indian tribes authority to act under the Clean Air Act. On 5/5/00, the D.C. Circuit upheld EPA’s 2/2/98 Final Air Quality Planning and Management Rule for Indian Tribes ("Rule"). In April, 2001, the Supreme Court declined to hear the appeal.

The Rule provides that the EPA will delegate to any federally recognized Indian Tribe, upon receipt of a properly completed tribal application, authority to implement federal Clean Air Act ("CAA") programs over lands located within the exterior boundaries of what EPA refers to as "Indian Country", as that term relates to a tribe. "Indian Country" thus includes all lands within the boundaries of a traditionally federally recognized Indian reservation (including privately owned, non-Indian lands), lands within the boundaries of off-reservation areas held in trust for a tribe by the federal government, and other lands over which a tribe can demonstrate that it has jurisdiction. Under the Rule, off-reservation "trust lands" include those lands purchased or acquired by a tribe or tribal member and placed into trust--including lands acquired for commercial and gaming casino purposes. The EPA’s definition of Indian Country conflicts with the far more restrictive definition of "reservation" used by Congress, the federal courts and even the EPA in other federal laws, cases and regulations governing tribal affairs.

Pursuant to the Rule, tribes may also "redesignate", as "Class I" areas for air quality management purposes, lands located outside of traditional reservation boundaries. Under current federal law, only lands within such boundaries may be redesignated as Class I. Redesignation to Class I status invokes the most stringent federal air quality protection standards relating to the siting of new or modified manufacturing facilities in areas sometimes located several hundred miles away from the Class I area.

Other features of the Rule include the elimination of the Title V requirement for review in state court of adverse tribal operating permit decisions and permitting delays and the insulation of tribes from citizen suits for asserted violations of the law. Moreover, upon approval of a tribal authority application under the Rule, state air permitting agencies will be stripped of their own authority to issue or renew installation, operation and other air permits to industrial sources located or seeking to locate within Indian Country, and existing state air permits issued to such sources will be invalidated.

Prior to issuance of the Rule, tribes, like states, were required to affirmatively demonstrate the public health, welfare and environmental bases for their assertion of environmental authority over lands that are clearly otherwise within their jurisdiction. That is no longer the case. The Court’s decision now allows the EPA (an administrative agency), in conjunction with tribes, to redraw state boundaries for regulatory purposes and to dispossess state permit holders of substantial rights. The EPA asserts that other federal environmental laws similarly allow EPA to delegate to a tribe authority to regulate other environmental media within "Indian Country".

The Petitioners in the case included, among others, the State of Michigan, several Arizona and New Mexico utility companies, the National Association of Manufacturers, the American Forest and Paper Association, the Michigan Chemical Council, the Rhinelander Area Chamber of Commerce and the Timber Producers Association of Michigan and Wisconsin, Inc. It is their position, among others, that decisions to redraw state boundaries for regulatory purposes must be made within the framework of established federal law and the United States Constitution, with full public participation, and not at the whim of federal administrative agencies. For more information regarding the Rule, contact Brian J. Renaud of Howard & Howard Attorneys, P.C., at (248) 723-0356, counsel in the case for NAM, AF&PA, the Michigan Chemical Council, the Rhinelander Area Chamber of Commerce, Inc. and the Timber Producers Association of Michigan and Wisconsin, Inc. Case decided on 5/5/00.

(consolidated with American Petroleum Institute & NAM v. EPA) -- The NAM filed a brief in March of 1998 calling on the court to review the final rules on the EPA's new air quality standards for ozone and particulate matter, as well as a final EPA rule relating to the "federal reference method" for National Ambient Air Quality Standards. On May 14, 1999, the U.S. Court of Appeals for the District of Columbia rejected these rules implemented by the EPA concerning ozone pollution. This ruling, a victory for manufacturers, was subsequently appealed to the Supreme Court, which reversed in 2001.

The D.C. Circuit's ruling temporarily stopped the EPA from assuming arbitrary authority. Manufacturers have struggled with EPA standards that are unrealistically strict and not reasonably related to clear health benefits. The ruling required EPA to say why the ozone pollution levels it has set are reasonable in term of health effects

The Court denied in part and granted in part the EPA’s petition for rehearing on Oct. 28, 1999.

The Government petitioned for Supreme Court review, on 1/26/99. The EPA appealed three issues, including whether:

1) the rulemaking process used by the EPA in revising the ozone and PM NAAQS "effects an unconstitutional delegation of authority";

2) the D.C. Circuit erred in assuming it had authority to review as a final agency action EPA’s "preliminary preamble statements on the scope of the agency’s authority to implement the revised ‘eight-hour’ ozone NAAQS;" and

3) subpart 2 of the Clean Air Act (which sets requirements for areas to come into attainment with the one-hour ozone standard) restricts EPA’s authority under other provisions "to implement a new and more protective ozone NAAQS" until the one-hour standard is attained.

EPA did not appeal the D.C. Circuit’s finding that the Agency must consider all health effects, both negative and positive, in setting a standard.

Background: When EPA issued its new air rule for ozone, the agency ignored the advice of its own scientific advisory panel and sidestepped a 1996 law designed to mitigate the costs of major rules on small businesses. These issues are the driving force behind an NAM lawsuit challenging EPA’s new ozone air quality standard. Two NAM briefs filed 3/23/98 ask the Court of Appeals to throw out the rule.

The NAM briefs noted that EPA’s new standard lacks the scientific support called for under the Clean Air Act and could actually lower health protection. The new standard:

Just as bad, EPA ignored its statutory duty to comply with the Small Business Regulatory Enforcement Fairness Act (P.L. 104-121), which requires agencies to study the potential impacts of major rules on small entities and find ways to mitigate their costs.

(also known as the Clean Air Implementation Project vs. EPA). The NAM filed this petition 4/18/97 to review a final EPA rule relating to credible evidence. The case affects manufacturers subject to new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAPs) under the Clean Air Act. The case was dismissed on 8/14/98 as unripe