Washington Environmental Council v. Sturdevant

Yesterday, Federal District Court Judge Marsha J. Pechman ruled (here) that Washington State agencies must  promulgate technology-based standards for greenhouse gas emissions from oil refineries in the state. The decision is based on a highly technical (but not convoluted) reading of state regulations under the federal Clean Air Act (CAA), according to which the state environmental agency must set RACT (reasonably achievable control technology) standards  for certain categories of existing stationary sources (in this case oil refineries) pursuant to their State Implementation Plan (SIP).

The most interesting aspect of this opinion to my mind is that SIPs are a compliance tool for attaining (or maintaining) national ambient air quality standards (NAAQSs), which are set for criteria pollutants. To date, the EPA has not established criteria documents for greenhouse gases, which would lead to the promulgation of NAAQSs for them. Yet, the federal court did not hesitate to require Washington state agencies to include regulations in their SIPs for GHGs. As Judge Pechman notes in her ruling, nothing in the SIP provision (sec. 110) of the CAA restricts the state from regulating air pollutants beyond federal requirements.  So long as the SIP "meets all the applicable requirements," EPA must approve it, even if it is more stringent than federal law requires. And it remains enforceable by both federal and state courts. In this case, the state's RACT regulations were broader than federal requirements in applying not only to criteria pollutants but to "all air contaminants." A 2009 executive order (09-05, May 21, 2005) by Washington Governor Christine Gregoire specifies that "greenhouse gases are air contaminants."

Presumably the State of Washington could easily avoid the court's order in this case simply by amending the language of its current RACT regulation to explicitly exclude GHGs. However, it may be politically difficult to for it to do so, given the 2009 executive order.

This is the first case (to my knowledge) where environmental groups have succeeding in regulating GHG emissions from existing (as opposed to new or substantially modified) stationary sources of greenhouse gas emissions under the CAA. The EPA has studiously avoided bringing GHGs under the general ambit of Title I of the CAA, which would require an endangerment finding (under sec. 108, separate from the endangerment finding EPA made under Title II for auto emissions of GHGs), issuing criteria documents, and promulgating NAAQSs (under sec. 109). Even in the absence of NAAQSs, emissions from new and substantially modified sources are subject to federal regulation because of  broad language in the relevant sections of the statute. However, "existing" sources are not subject to direct federal regulation under the act (broadly speaking); rather, they are regulated by the states, pursuant to sec. 110 SIPs. The EPA must approve SIPs that meet certain federal requirements relating to attainment (or movement toward attainment) of NAAQSs. This case shows how language in state regulations, if it is sufficiently broad, can bring SIPs into play in regulating GHGs from existing stationary sources with technology-based standards.