Did you know the Clean Air Act includes a so-called Good Neighbor Provision that prohibits sources within a state from interfering with the attainment or maintenance of a National Ambient Air Quality Standard (or NAAQS for short) in any other downwind state?
We blogged about the Environmental Protection Agency’s (EPA) plan to implement the Good Neighbor Rule with respect to the 2015 NAAQS for ozone when it was announced and again this past July, when the United States Supreme Court rejected the Plan in the case Ohio v. Environmental Protection Agency.
Well, we have a little update for ya. Here’s what’s going on:
The Good Neighbor Plan that the Supreme Court rejected would have resulted in restrictions being placed on certain large sources’ (most prominently for our region, power plants that burn fossil fuels, iron and steel mills, natural gas pipelines, and cement manufacturers) emissions of oxides of nitrogen (NOX) in states that were subject to the plan.
The Good Neighbor Plan failed when subjected to legal challenges for two reasons:
The Plan circumvented states’ authority under the Clean Air Act to develop their own rules to meet their Good Neighbor obligations and
EPA failed to explain how the Plan would work if one or more states were exempted from it (if, for example, EPA failed to allow the states to develop and implement their own plans, as was in fact the case).
Well, the Good Neighbor Plan is back, albeit in much abbreviated form.
Last week, EPA announced a final rule that would restrict emissions of NOX from fossil fuel-burning power plants in nine states - including Pennsylvania - in order to implement those states’ Good Neighbor obligations with respect to the 2015 NAAQS for ozone.
The Plan would no longer apply to other source categories.
Under the revised Plan, power plants in those nine states will participate in an already-existing program known as the Cross State Air Pollution Rule that implements Good Neighbor obligations with respect to the 2008 NAAQS for ozone.
The rule purports to do this by capping NOX emissions from sources within the included states (at levels which will prevent interference with the attainment or maintenance of the NAAQS in downwind states) and authorizing trading of emission allowances between sources. According to EPA’s Final Rule, CSAPR has been modified to meet participants’ obligations with respect to both the 2008 and 2015 NAAQS for ozone.
In an unusual twist, EPA is not accepting comments on the final rule.
“The end result of all of this is – assuming the revised plan survives any further legal challenge – is that NOX emission limits at power plants in our area that are subject to the rule may be reduced, although by how much at any particular power plant is not yet clear,” GASP senior attorney John Baillie explained.
He continued:
“Further, downwind states should have an easier time attaining and maintaining the 2015 NAAQS for ozone.”