Marten Law: EPA Proposes to Require Oregon, Idaho, Alaska and Ten Other States to Update Clean Air Act Permitting Programs to Address Greenhouse Gas Emissions

Marten Law: EPA Proposes to Require Oregon, Idaho, Alaska and Ten Other States to Update Clean Air Act Permitting Programs to Address Greenhouse Gas Emissions

   By Dustin Till, Associate, Marten Law Group PLLC

“The Environmental Protection Agency is taking more steps to implement its greenhouse gas Tailoring Rule, which will restrict emissions from new and modified large stationary sources such as power plants and petroleum refineries beginning January 2, 2011,” writes Dustin Till. “On September 2, 2010, the agency released two draft rules for implementing the agency's new permitting requirements under the Clean Air Act's Prevention of Significant Deterioration (PSD) program. Meanwhile, Congress is expected to vote this fall on proposals to block or delay EPA's regulation of greenhouse gas emissions under existing Clean Air Act requirements, and litigation over EPA's rules moves forward. But unless the courts or Congress intervene, limits on GHG emissions on stationary source will begin to go into effect early next year.”

“The first of the actions EPA released this month is a proposed determination that the Clean Air Act implementation plans (State Implementation Plan or SIPs) in 13 states are ‘substantially inadequate’ because their PSD programs do not apply to new or modified greenhouse gas-emitting sources,” explains the author. “EPA would require that non-compliant states issue revised SIPs within 12 months of issuance of the final rule (slated for early December 2010). In its second rule, EPA proposes assuming responsibility for PSD permitting for greenhouse gas emissions for those states that do not timely submit compliant SIPs, via a Federal Implementation Plan (FIP).”

“A report by the National Association of Clean Air Agencies projects that the majority of states will be ready to implement permitting for greenhouse gases by the January 2, 2011, deadline. A number of states, however, are resisting EPA's new requirements,” Till, a partner with Marten Law Group PLLC, reports. “In a sharply worded August 2, 2010 letter, the state of Texas indicated that ‘Texas has neither the authority, nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.’ The state of Arizona has asked EPA to reconsider its proposed determination that the Arizona SIP is inadequate. And a number of states have expressed concern that they will not have sufficient authority to implement the Tailoring Rule by EPA's January 2, 2011, deadline.  For example, Wyoming Governor Dave Freudenthal stated that Wyoming may not meet EPA's deadlines because of the need to amend state law.”

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As a lawyer with the Marten Law Group, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law Group writing ongoing articles for Lexis Nexis’ Environmental Law and Climate Change Center. Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.

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