Vantage
Point
The idea for this issue of NR&E took root after what some
analogized to a train wreck in the sky, the D.C. Circuit’s decision vacating the Clean Air Interstate Rule (CAIR). The theme
of this issue, called “Air Today, Gone Tomorrow,” is air and the
dramatic changes we have witnessed in both law and policy
under the Obama administration. We received an overwhelming
response to our solicitation for articles and regret that space limitations prohibited us from publishing all of the articles. In selecting articles, we made an effort to include a variety of perspectives
and articles that while air-related might also appeal to our readers
whose practices do not focus solely on air.
The first article on unilateral agency action epitomizes the
theme of this issue. The authors discuss efforts by the Obama
EPA to pull back final rules and permits issued by the Bush
EPA without following procedures prescribed in the Clean
Air Act and Administrative Procedure Act. They explore the
implications of such actions if courts fail to rule against EPA.
The next two articles explore emissions trading in the
aftermath of the D.C. Circuit’s vacatur of the Clean Air
Mercury Rule and second CAIR decision remanding the rule.
The first article discusses EPA’s authority to institute such programs and the interaction of trading programs with traditional
command-and-control regulations. The second article focuses
on the issues confronting EPA as it develops a transport rule to
replace CAIR, including interstate trading and the role of cost
effectiveness. Both articles provide insight for the design of
market-based mechanisms as we debate alternative approaches
for reducing greenhouse gases (GHGs) and other pollutants in
the coming years.
The trading articles are followed by a new source review
article on the law that has been established as a result of EPA’s
enforcement initiative against electric utilities. The issues discussed include fundamental regulatory issues such as the federal statute of limitations, fair notice, and the role of agency
deference in enforcement actions as well as substantive issues
such as the routine maintenance, repair, and replacement
exclusion and the test for determining emissions increases.
The authors explore the implications for electric utilities
and other industries as EPA continues to file new complaints
against utilities and expands its enforcement efforts to other
industries.
The next article reviews numerous regulatory developments
that are shaping air quality regulation of oil and gas (O&G)
production in the West. Topics discussed include implications
of a more stringent ozone NAAQS, potential impacts of EPA
reinstating its source aggregation policy for defining an O&G
major stationary source, challenges to O&G activity on federal
public lands, increased state regulation as well as regulation of
sources not previously regulated, and potential GHG reporting
and regulatory requirements for onshore O&G production.
Following the O&G discussion, this issue presents an examination of the evolving regulatory requirements impacting
the operation of industrial and commercial boilers, including
the pending re-proposal of the Boiler MACT and area source
boiler rule, developments concerning GHG monitoring and
regulation, the prospect of revisions to the boiler new source
Published in Natural Resources & Environment, Volume 24, Number 4, Spring 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
performance standards to address GHG emissions, and the
status of the startup, shutdown, and maintenance rules. The
boiler article also discusses the new generation of control technology being designed to capture multiple air pollutants more
cost-effectively than existing control systems.
We have also included an international article that provides insight into implementation of air pollution control law
in Europe. The authors explain how Europe fights particle
pollution and discuss the deliberations that established new
objectives on PM2.5, confirmed the existing PM10 standards,
and the law that allows additional time for compliance with
PM10 limit values.
The next article looks at public nuisance, discusses the constitutional boundaries of this tort, and explores federal versus
state common law public nuisance and the limits arising from
federal statutory law and from state law. The article proposes
limits on the role of public nuisance in today’s world and
suggests judicial restraint so that courts are not making public
policy.
After the public nuisance article is a climate change article
that explores the Clean Air Act as a tool to combat global
warming. The authors discuss the Clean Air Act’s history of
pollution control and consider how each of its provisions can be
implemented to reduce GHG emissions. They also discuss GHG
emissions targets to reduce carbon dioxide concentrations.
Finally, in this issue, we are publishing a streamlined version of an award-winning article from last year’s ABA Section
of Environment, Energy, and Resources Law Student Writing
Competition. The article explores how the current framework
of technology-based permitting imposes obstacles to achieving
environmental justice goals and suggests changes to the current permitting system to achieve those goals. The publication
of this article is part of our commitment announced in Why
Species Matter, NR&E Fall 2007, to engage and support law
student and young lawyer involvement in the Section.
Gale Lea Rubrecht
Issue Editor
2
NR&E Spring 2010
Published in Natural Resources & Environment, Volume 24, Number 4, Spring 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.