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Why It Matters
Haze occurs when small particles of air pollution scatter and absorb sunlight, blurring scenic views and decreasing the distance that can be seen from overlooks. In response to this problem, Congress enacted Section 169A of the Clean Air Act to protect visibility in national parks and wilderness areas. The Environmental Protection Agency (EPA) subsequently promulgated the Regional Haze Rule in 1999. The program directs states to implement pollution control plans, called State Implementation Plans (SIPs), to improve visibility and air quality at national parks. If a state fails to submit a satisfactory plan, EPA is expected to promulgate a Federal Implementation Plan (FIP) to replace or supplement the state’s SIP. (See here for our tracker post on the Regional Haze Rule, beyond the state programs.)
Since the implementation of the regional haze program, the average visual range has increased from 90 to 120 miles in some western parks and from 50 to 70 miles in some eastern parks. In addition to the benefits for visitors at national parks, the regional haze program delivers public health benefits. The primary pollutants that cause regional haze, including particulate matter, nitrogen oxides (NOx), sulfur dioxide (SO2), and volatile organic compounds (VOCs), are linked to serious health effects including premature death. Some of these pollutants also contribute to acid rain. Implementation of the Regional Haze Rule and associated regulations has produced sharp declines in the emissions of those pollutants, resulting in improved air quality as well as improved visibility in scenic areas. In fact, EPA estimates that during the first implementation period (2007-2018), there was a reduction in SO2 emissions of 500,000 tons per year and in NOx emissions of 300,000 tons per year.
Current Status of the Regional Haze SIPs
On April 12, 2018, President Trump directed the Administrator of EPA, Scott Pruitt, to review all existing FIPs and to develop options replace those plans with SIPs.
EPA is also involved in ongoing litigation with multiple states and regulated industries regarding the adequacy of the states’ SIPs and the consequent FIPs that EPA promulgated. Through these legal challenges, several states and industry are seeking more lenient technology standards for polluting facilities. In many cases, the litigation and the FIP involve only a portion of the state’s plan, including pollution controls for specific power plants. The five states that recently challenged EPA’s actions on their Regional Haze SIPs are Arizona, Arkansas, Texas, Utah, and Wyoming.
Last year EPA settled with one of the industrial facilities directly affected by Wyoming’s FIP. In addition, EPA recently approved partial SIP revisions for Texas, Arkansas, and Arizona, authorizing control technologies that will likely result in higher emissions from affected facilities than the FIP that was previously in place. EPA is currently reconsidering and seeking to revise Utah’s FIP.
Outside of the state-specific litigation, EPA is also involved in litigation challenging EPA’s 2016 regulations that enhanced requirements for SIPs to ensure states continue to make progress towards the visibility goals.
Overview and History of the Regional Haze SIPs
The first state plans were due in 2007. Plan revisions are required every decade, with the first full revision now due in 2021 (postponed from an original 2018 deadline). As part of the SIPs, states must calculate and work towards interim, short-term progress goals, with a long-term goal of returning targeted areas to their natural conditions by 2064.
The Clean Air Act and EPA regulations also mandate that certain older power plants adopt pollution abatement technology, known as “Best Available Retrofit Technology.” EPA allows this requirement to be met through a variety of methods: installing and operating specific technology, like scrubbers; requiring that sections of the facility periodically shut down to decrease overall annual emissions, known as “seasonal curtailment;” or integrating the power plants into the interstate emissions trading program, CSAPR.
If sections of the state’s SIP will not result in sufficient improvement to air visibility and quality, including if EPA determines that the pollution control technology is inadequate for specific facilities, EPA is expected to issue a FIP. EPA may also work with the state to revise the SIP. The FIP often addresses the insufficiency of the state’s interim progress goals, as well as specific technology controls for facilities. In practice, FIPs have been effective tools to compel states to take the action required under law even when they are reluctant to do so.
On December 5, 2012, EPA published a final rule that partially disapproved one section of Arizona’s SIP and promulgated a FIP to require certain NOx controls for the Cholla Power Plant, a coal-burning plant in Arizona.
On September 3, 2014, EPA published a final rule completing the 2012 FIP for certain disapproved sections of Arizona’s SIP. The FIP promulgated control technologies for five facilities in Arizona and addressed the short-term progress goals for two facilities in the state.
On October 13, 2014, Arizona filed a petition for review of EPA’s FIP in the 9th Circuit Court of Appeals. In November, three of the facilities regulated by the FIP filed separate petitions for review in the 9th Circuit. The four cases were consolidated as Arizona ex rel Henry Darwin v. USEPA, et al, Docket No. 14-73368.
On January 27, 2015, industry filed a motion to stay the final rule.
On June 21, 2016, oral argument was held in Arizona ex rel Henry Darwin v. EPA.
On March 27, 2017, EPA published a final rule approving a source-specific SIP revision for the Cholla Power Plant in northeastern Arizona. The SIP requires that two units at the plant eventually stop burning coal but allows the plant to emit more NOx than would have been permitted under the previous FIP promulgated by the Obama administration.
On April 3, 2017, the 9th Circuit upheld the legality of EPA’s FIP for Arizona, as it related to the emissions controls imposed on the three facilities that filed petitions for review in Arizona ex rel Henry Darwin v. EPA. The court also dismissed some claims brought by the state and industry.
On October 10, 2017, EPA issued a final rule approving Arizona’s SIP for the Coronado Generating Station. The rule allows Arizona to require alternative technology controls that will require temporary shutdown of the facility in order to meet the regional haze goals. This is different than using control technology that causes continuous lower pollution levels of NOx, which the Obama administration had proposed.
On September 27, 2016, EPA published a final rule that issued a FIP for Arkansas and included pollution limits for NOx, SO2, and particulate matter for six facilities, as well as SO2 and NOx limits for an additional facility. The FIP also established short-term progress goals for reducing haze over Arkansas’ protected areas. The FIP gave power plants eighteen months to comply with the rule.
On November 22, 2016, the state of Arkansas filed a petition for review of the FIP in the 8th Circuit Court of Appeals. Industry and conservation groups joined the suit later that month and filed individual petitions for review. The court later consolidated the cases as State of Arkansas v. EPA, Docket No. 16-4270.
On February 7, 2017, Arkansas asked for a stay of the FIP. Industry filed a motion for a stay on February 8, 2017.
On March 7, 2017, EPA filed an unopposed motion to hold the case in abeyance. The court granted this motion on March 8, 2017. Over the next 10 months, the court continued to grant EPA’s motion to hold the case in abeyance.
On April 14, 2017, EPA agreed to reconsider certain aspects of the final rule. On April 25, 2017, EPA extended the 18-month compliance deadline for certain facilities by 90 days.
On July 12, 2017, Arkansas proposed revisions to the SIP regarding NOx controls for power plants. The proposed SIP stated that no additional controls were needed beyond the CSAPR interstate trading provisions.
On July 13, 2017, EPA proposed a rule to approve these revisions. EPA also proposed a rule extending the compliance dates for additional facilities until January 27, 2020.
On December 15, 2017, Arkansas filed a motion for a stay of the final rule. EPA did not oppose Arkansas’ motion, and industry supported it. Environmental groups opposed the stay.
On February 12, 2018, EPA published a final rule approving Arkansas’ July 12 SIP and rescinding the portions of the FIP requiring more stringent NOx controls for the affected power plants.
On March 7, 2018, the court granted industry’s motion for a stay on the SO2 emission limits, allowing three facilities in Arkansas to delay reducing their emissions while the state finalizes its SIP revisions.
On January 5, 2016, EPA partially disapproved Texas’ revised SIP and promulgated a FIP, which included SO2 controls for eight coal-fired power plants. The controls were estimated to reduce SO2 emissions by 230,000 tons annually.
On March 1, 2016, Texas and industry groups filed petitions for review of EPA’s actions in the 5th Circuit Court of Appeals, State of Texas, et al v. EPA, Docket No. 16-60118.
On March 3, 2016, industry filed a motion to stay the final rule. Texas filed an additional motion to stay on March 17, 2016. The court granted the motion to stay the rule on July 15, 2016.
On December 2, 2016, EPA filed a motion to remand the case to EPA for reconsideration following settlement discussions between the parties.
On January 4, 2017, EPA published a new proposed rule to impose SO2 limits on 14 power plants in Texas. The limits were expected to reduce emissions by approximately 194,000 tons annually. The FIP also allowed Texas to meet its NOx requirements by participating in CSAPR.
On February 23, 2017, the 5th Circuit granted EPA’s motion to remand the case to the agency.
On October 17, 2017, EPA issued a final rule partially approving Texas’ SIP and issuing a FIP, allowing Texas to meet requirements for SO2 and NOx emissions through an intrastate trading system.
On December 15, 2017, a coalition of conservation organizations filed a petition for review of the final rule in the 5th Circuit, National Parks Conservation Association, et al v. EPA, Docket No. 17-60828. The groups also filed a petition with EPA to reconsider the rule. Both petitions argue that the final rule published in October is unlawful because the intrastate trading system is unrelated to the proposed FIP that EPA published in January.
On March 7, 2018, following a joint motion by the conservation groups and EPA, the 5th Circuit stayed the case pending EPA’s reconsideration of the final rule.
On July 5, 2016, EPA partially approved Utah’s SIP and promulgated a FIP that would impose NOx emissions limits on two facilities in Utah.
On September 1, 2016, Utah filed a petition for review in the 10th Circuit. Industry also filed petitions for review in the 10th Circuit. The court later consolidated the three cases as State of Utah v. EPA, et al, Docket No. 16-09541.
On October 28, 2016, Utah and industry filed separate motions to stay the rule. EPA opposed these motions on December 16, 2016.
On February 15, 2017, EPA filed a motion to postpone deciding whether it would continue to oppose the motion for a stay. EPA filed two motions in March and May further postponing this action.
On July 18, 2017, EPA decided to reconsider the FIP and filed a motion to abate the case in Utah.
On September 11, 2017, the court granted the motions for a stay and EPA’s motion to abate the case. The court required that EPA provide status reports every 90 days.
On December 13, 2017, EPA filed a status report stating that EPA was investigating updated technical analysis to revise the rule.
On March 12, 2018, EPA filed a status report stating that the updated air quality model simulations were expected to be completed by May. Following evaluation of the simulations, EPA will move forward with publishing a new proposed rule for Utah.
On January 30, 2014, EPA published a final rule that partially approved Wyoming’s SIP and promulgated a FIP for Wyoming that established NOx controls for 3 facilities in the state.
On March 28, 2014, Wyoming and conservation groups filed opposing petitions for review of EPA’s actions in the 10th Circuit Court of Appeals. On March 31, 2014, industry groups also petitioned the court for review. These four cases were later consolidated under Basin Electric Power v. EPA, et al, Docket No.14-09533.
On June 11, 2014, the state of Wyoming and industry filed separate motions to stay the final rule.
On September 9, 2014, the 10th Circuit granted the motions for a stay.
On April 24, 2017, EPA, Wyoming, and the Basin Electric Power Cooperative reached a settlement regarding the Laramie River Generating Station.
On April 28, 2017, EPA, industry, and Wyoming filed a motion to abate proceedings on all four petitions. The court granted this motion on May 17, 2017.
On June 2, 2017, the conservation groups filed a motion to proceed separately with their case in Wyoming, as the settlement agreement only covered one facility and did not address many of the groups’ challenges to the final rule.
On June 12, 2017, EPA opposed the conservation groups’ motion, arguing that the cases should not be severed, as the four petitions all challenge the same final rule.
On June 19, 2017, the 10th Circuit denied the conservation groups’ motion and kept the proceedings on hold for all four consolidated cases. The court continued this hold on November 9, 2017.
Thank you to Harvard student Laura Bloomer, JD/MPP 2019 for her assistance with this rule.