The Nickel Report

As we have noted previously (An Opportunity for a New Federal-State Relationship Under the Regional Haze Program, July 17, 2017; A New Perspective on Regional Haze Regulation?, February 14, 2017), the US Environmental Protection Agency (EPA) recently signaled a new openness to recognizing state prerogatives and flexibility in implementing the regional haze program under the Clean Air Act (CAA). That program addresses impairment of visibility in the skies over protected national parks and wilderness areas that is attributed to widespread haze resulting from emissions to the air from varied sources.

On November 16, 2017, the D.C. Circuit heard oral argument in the cases challenging EPA’s 2012 rule allowing states to rely on compliance with the Cross-State Air Pollution Rule (CSAPR) to satisfy electric generating units’ “best available retrofit technology” (BART) requirements for emissions of nitrogen oxides and sulfur dioxide under the Clean Air Act (CAA). The cases are UARG v. EPA, No. 12-1342­ and consolidated cases (D.C. Cir.).

During much of the Obama administration, states and EPA were in conflict about how to craft Clean Air Act plans to reduce “regional haze” impairment of visibility in national parks and wilderness areas. The technical and policy issues are daunting. Regional haze forms in the atmosphere from many sources’ air emissions — emissions from cars and trucks, construction equipment, factories and power plants (among others), plus natural sources like wildfires and dust storms. Developing regional haze implementation plans entails complex policy choices and weighing sometimes heavy compliance costs for emission controls — costs that may total in the hundreds of millions or even billions of dollars — against improvements in visibility that can be hard to measure and in some cases are even imperceptible to the human eye.