Clean Air Act (CAA) 42 U.S.C. ch. 85 (§§ 7401-7671q)

The Clean Air Act (CAA) is an extensive Federal Law regulating air pollution. It authorized the U.S. Environmental Protection Agency (EPA) to create air quality standards to protect the environment and public health. These are the National Ambient Air Quality Standards (NAAQS). The CAA was established in 1970 at the height of a national environmental movement and underwent major revisions in 1977 and 1990. These revisions were established in order to remain effective as new problems such as acid rain or the depletion of the ozone layer emerged. Congress found that environmental problems had become so extensive that local or State legislation would not be enough to protect public health. They found that much of the US population lives in urban environments that were expanding and crossing these local jurisdictions and State boundaries. Air pollution was becoming more and more complex and widespread because of the simultaneous growth of urbanization with industrial development and motor vehicle usage. Because of the rise in air pollution, public health and welfare were in danger of a multitude of vulnerabilities including injury to crops and livestock, destruction of property, and hazards related to transportation. Before the Clean Air Act, local and State jurisdictions were in charge of regulating air pollution, but its rising complexity made these efforts inadequate. The Clean Air Act was established to nationalize regulating and preventing air pollution. To do this they safeguarded and improved the existing air resources while introducing and prioritizing research and developmental programs to control air pollution. They also provided assistance to State and local governments to help them develop the regulations in the Clean Air Act.

First, you'll find an overview of the statute, followed by a student-authored brief analyzing a case that interprets it.

  • Section § 7401, on Preconstruction Requirements, talks about the construction of major emitting facilities as well as an exception to these regulations. The exception is for the expansion or modification of a major emitting facility that is already in existence as of August 7, 1977. After having the best available technology to control the air pollutants, if their emissions are less than the allowable amount of fifty tons per year, and the operator of the facility can prove that the emissions do not or will not contribute particulate matter or sulfur oxides to the ambient air quality levels greater than what is allowed by the national secondary ambient air quality standards, then they are an exception to the maximum allowable increases required in the preconstruction requirements. The definitions section includes their definition of what a “major emitting facility” means. It lists many different stationary sources that emit or have the “potential to emit” one hundred or more tons per year of any air pollutant. Also, this term includes any source not listed that emits or has the potential to emit over two hundred and fifty tons per year of any air pollutant. The term does not include facilities that are new or modified that are nonprofit health or educational institutions exempted by the State.

  • Link to the case: https://casetext.com/case/alabama-power-co-v-costle

    Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap85

    Please note that the following brief was prepared by a student.

    Plaintiff: Alabama Power Company et al.

    Defendant: Douglas M. Costle, EPA Administrator

    Procedural History: Petitioner industry groups requested a judicial review of orders from the respondent Environmental Protection Agency that promulgated final regulations implementing the Clean Air Act Amendments of 1977 and intervenor environmental groups participated. Petitioners challenged the validity of these regulations that prevented emissions causing air quality deterioration. They petitioned for a Review of Orders of the Environmental Protection Agency.

    Facts: The Clean Air Act makes an exception applicable to major emitting facilities in Class II areas that were in existence by August 7, 1977, and are subject to permit requirements in § 165. Congress's intention was to identify facilities which, because of their size, were financially able to bear the substantial regulatory costs and were primarily responsible for emission of the nation’s air pollutants. Under the Clean Air Act, § 169(1), the "major emitting facility" includes industrial entities that are stationary sources of air pollutants from among 28 listed categories which "emit, or have the potential to emit" 100 tons per year or more of any air pollutant plus any other stationary source with the "potential to emit" 250 tons per year or more of any air pollutant.

    Legal Issue (Question): Does the language “potential to emit” and “major emitting facility” defined in the Clean Air Act reflect congressional intent and properly represent the exception in § 101, 42 U.S.C.S. § 7401?

    Holding or Decision: No, the court directed the EPA to revise the regulations based on the language of the statute.

    Reasoning: The court decided that the language “potential to emit” did not reflect their analysis of congressional intent for the regulations because under the EPA's interpretation of "potential to emit," the actual emissions calculation called for by the verb "emit" would lose all significance. They also found that for the term “major emitting facility” the EPA incorrectly interpreted the Act's definition under § 169(1) and that they excessively expanded the exemption in § 165(b). Concluding that the exemption only applied to precise, identified circumstances.

    Dissenting Opinions: None

  • This section of the Clean Air Act defines different types of air pollution sources and creates a set of rules and standards for these sources. Item A defines these air pollution sources and includes major sources (located in one area and emitting ten tons of a hazardous pollutant each year), area sources (stationary sources that are not major sources), stationary source (a building or structure which emits air pollutants), or an existing source. Item B lists the categories of stationary sources; standards of performance; information on pollution control techniques; sources owned or operated by the United States; particular systems; and revised standards. In particular, this item addresses the administrators’ jurisdiction in regard to sources. Item C addresses state implementation and enforcement of performance standards, saying that each state is responsible for developing a procedure to implement and enforce performance standards. Similarly, Item D describes the standards of performance for existing sources, saying that each state will submit a plan to the Administrator which establishes the standards of performance. In Item E, prohibited acts are briefly discussed, namely specifying that after the effective date of standards of performance, it will be illegal to operate new sources in violation of the standards of performance. Subsequently, Item F addresses new source standards of performance which leave the Administrator to propose regulations that determine standards of performance. Item G discusses the revision of regulations after the application by the Governor of a State. Item H and I explain the design, equipment, work practice, or operational standard; alternative emission limitation; and country elevators. In regard to design, this means that if a standard of performance is not enforceable, alternative standards may be determined based on design, equipment, work practice, or operational standard. Finally, Item J describes innovative technological systems of continuous emission reduction. This includes people who are proposing to own or operate new sources who may make requests to the Administrator for waivers to the requirements of what is outlined in this section. In the Clean Air Act, the standards for determining regulation include the quantity of pollution emitted, the anticipated danger of the pollutant to public welfare, and the mobility of each category of major source. Within the category of stationary air pollution sources, there are definitions of types of sources, standards for different sources, and regulations on existing and new sources.

  • Link to the case: https://supreme.justia.com/cases/federal/us/564/410/

    Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap85-subchapI-partA

    Please note that the following brief was prepared by a student.

    Heading: Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 Supreme Court of the United States

    April 19, 2011, Argued; June 20, 2011, Decided

    Petitioner: American Electric Power Company et al. Respondent: Connecticut et al.

    Procedural history: Prior to the EPA’s efforts to regulate greenhouse gasses, the plaintiffs (now respondents) filed complaints separately in a federal district court against five electric power companies (now petitioners) on the grounds that the defenders are the largest carbon dioxide emitters in the country. The plaintiffs asked the court to set a standard for carbon dioxide emissions from the defendants. The District Court dismissed the suits since it found that they presented nonjusticiable political questions and the U.S. Court of Appeals for the Second Circuit later reversed this decision. The Second Circuit ruled that the plaintiffs’ claim was stated under the federal common law of nuisance and that the Clean Air Act did not displace federal common law. The petitioners are now appealing this decision.

    Facts: The plaintiffs (now respondents) consist of two groups: eight states and New York City, and the second was a group of three nonprofit land trusts. The defendants (now petitioners) are a group of five electric power companies. The plaintiffs stated that the defendants’ emissions contribute to global warming and in doing so, interfere with public rights which violates the federal common law of interstate nuisance or state tort law. As such, the plaintiffs are asking that a decree be issued to set a cap on carbon dioxide emissions which will be further reduced on an annual basis. As established in the Clean Air Act, the Act provides a way to seek limits on emissions, as the respondents attempted to do by invoking federal common law. However, Congress left the decision of how and when to regulate carbon dioxide emissions from power plants to the EPA and this delegation displaced common law.

    Issue: Does 42 U.S.C. §7411 apply to Am. Elec. Power Co. v. Connecticut in requiring the EPA to set a cap on emissions standards for carbon dioxide emissions?

    Holding: No.

    Reasoning: According to 42 U.S.C. §7411, the EPA Administrator must list “categories of stationary sources” that “caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare” (42 U.S.C. §7411 (b)(1)(A)). After a category is listed, the EPA must set standards of performance for the emission of pollutants from new or modified sources within each category of pollutant. Item D of this section requires that existing sources of pollutants within a category are also regulated. Enforcing these standards of performance can take several forms including through state enforcement or private enforcement. If states or private parties believe that an emissions limit should exist for a particular pollutant or source of pollution, they may petition for a rulemaking. The Clean Air Act allows each State to attempt to determine how to best achieve EPA emissions standards before federal intervention. It is important to note that the plaintiffs first sought relief under state law in states where the defendants operate power plants and that the Second Circuit did not reach state law claims, instead holding that federal common law governed this regulation. The Court found that there is not a definitive argument in 42 U.S.C. §7411 to require the EPA to set a cap on emissions standards for carbon dioxide emissions and that the issue must be left open for consideration on remand.

    Dissent: None.

  • Link to the case: https://www.supremecourt.gov/opinions/21pdf/597us2r65_5iel.pdf

    Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap85-subchapI-partA

    Please note that the following brief was prepared by a student.

    Facts: Under the Clean Air Act, the Environmental Protection Agency (EPA) is responsible for regulating stationary sources of air pollution, including power plants. In 2015, the EPA introduced the Clean Power Plan, mandating states to decrease carbon dioxide emissions from existing power plants. A number of states, spearheaded by West Virginia, contested the plan in court.

    Procedural History: The U.S. Court of Appeals for the D.C. Circuit affirmed the Clean Power Plan. The Supreme Court granted certiorari and issued a stay on the plan pending appeal. However, prior to the D.C. Circuit hearing the case on its merits, the Supreme Court ruled that the stay should remain in place while legal challenges continued.

    Legal Issue: Whether the EPA had the authority under the Clean Air Act to regulate carbon dioxide emissions from existing power plants and whether the EPA's interpretation of its authority warranted deference.

    Holding or Decision: The Supreme Court overturned the D.C. Circuit's decision upholding the Clean Power Plan and remanded the case for additional proceedings. The Court determined that the EPA did not possess the authority under the Clean Air Act to regulate carbon dioxide emissions from existing power plants using the Clean Power Plan's approach. Furthermore, the Court concluded that the EPA's interpretation of its authority did not merit deference.

    Reasoning: The Court ruled that the Clean Power Plan's approach was not within the EPA's authority under the Clean Air Act. The Court discovered that the plan necessitated states to regulate power plants beyond their jurisdiction, which exceeded the EPA's authority. Additionally, the Court maintained that the EPA's interpretation of its authority was not entitled to deference because the plan would have significantly altered the energy industry and impacted the nation's electrical grid without explicit congressional authorization.

    Dissenting Opinions: The dissent argued that the EPA had the authority to regulate carbon dioxide emissions from existing power plants and that its interpretation of its authority deserved deference. The Clean Power Plan was considered a reasonable interpretation of the Clean Air Act, with the EPA's approach supported by the statute's text, structure, and historical context.

    Summary and Rationale: West Virginia v. EPA, 142 S. Ct. 2587, was a case adjudicated by the Supreme Court of the United States, addressing the legality of the Environmental Protection Agency's (EPA) Clean Power Plan.

    In 2015, the EPA established the Clean Power Plan, which imposed limits on carbon dioxide emissions from power plants to combat climate change. Numerous states, including West Virginia, contested the plan in court, contending that the EPA overstepped its authority under the Clean Air Act and that the plan would adversely impact the coal industry and the economy of the job market during the transition to alternative energy sources.

    In February 2016, the Supreme Court issued a stay on the plan, and later that year, it heard oral arguments in the case. The Court's decision, delivered in October 2016, did not address the legality of the Clean Power Plan itself. Rather, the Court determined that the EPA should have considered the costs of compliance when assessing whether the plan was "appropriate and necessary" under the Clean Air Act.

    Although the Court's decision did not invalidate the Clean Power Plan, it remanded the case to the lower courts for further evaluation of whether the EPA had adequately considered costs in its decision-making process. However, the 2016 election of President Donald Trump resulted in the EPA, under his administration, repealing and replacing the Clean Power Plan in 2019 with a new regulation called the Affordable Clean Energy rule, effectively rendering the West Virginia v. EPA case largely moot.

Clean Air

Clean Air Act

  • The section most directly relevant to the 2015 case Michigan v. EPA is § 7412 Hazardous air pollutants (HAPs). Specifically, part (N)(1)(a) deals with the regulation of power plants, officially known as electric utility steam generating units (EGUs). This part states that the regulation must be deemed appropriate and necessary by the Administration, language the court debated at length in this case. The section also outlines a list of hazardous pollutants and pollutant source categories, but it is important to note that it allows for future modifications that “are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects” [U.S.C.S. § 7412(b)(3)(B)]. In its nature, the CAA is subject to be amended because of its reliance on developing scientific studies that discover how pollutants affect the human body and public wellbeing.

    In this section and as a whole, the Clean Air Act determines the scope of the EPA’s regulatory powers over hazardous air pollutants and their sources. However, cases like Michigan can apply them to particular pollutants and pollutant sources such that there is variation in the reception and enforcement of the act. The American public has the CAA to thank for air quality standards that link directly to public health and wellbeing, but particular cases to credit for the details of what pollutant sources are regulated and which remain unchecked.

  • Link to the case: https://supreme.justia.com/cases/federal/us/576/743/

    Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2023-title42/USCODE-2023-title42-chap85-subchapI-partA

    Please note that the following brief was prepared by a student.

    Plaintiff/Appellant: Michigan and several industry groups.

    Defendant/Appellee: Environmental Protection Agency and other interested parties.

    Procedural History: In 2012, the EPA mandated that power plants had to reduce their use of mercury and other Hazardous Air Pollutants (HAPs). Michigan and several industry groups sued the EPA over this mandate in a DC district court, but the court upheld the EPA’s decision to mandate it. Michigan and the several industry groups appealed to SCOTUS.

    Facts: Mercury is a HAP, especially harmful to pregnant people and children as discovered in the EPA’s mandated health study in 1998. U.S. power plants are the largest (non-natural) mercury emission source. The cost of the necessary and appropriate regulations to power plants is estimated to be $9.6 billion a year.

    Issue: Was it appropriate and reasonable for the EPA to regulate mercury and other HAP emissions from power plants without immediate analysis of regulatory costs, given the CAA’s defined regulatory powers?

    Holding: No, it was not appropriate nor reasonable for the EPA to regulate mercury and other HAP emissions from power plants via the CAA in this case because the EPA failed to consider the costs of reducing those emissions when they decided that in 2012. Their failure to consider regulatory costs in their interpretation of the CAA shows an unreasonable interpretation of 42 U.S.C.S § 7412(N)(1)(a) that does require at least some attention to cost. It is essential to note that this evaluation of cost must be done prior to the regulatory process. Given the Chevron deference that directs the court to accept the EPA’s resolution on the necessary regulations for power plants, this holding does not invalidate the actual validity for mercury and other HAP regulation, only the EPAs failure to consider cost. The case will be sent back to the DC circuit court for further review.

    Reasoning: The CAA requires the EPA to regulate power plant emissions if doing so is deemed “appropriate and necessary”. Due to the EPA’s evaluation of regulatory costs in previous cases, it is implied that cost analysis of changes made due to regulation is a part of the determination of “appropriate and necessary” regulations. However, the Chevron deference, as determined in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers so that the EPA, in this case, is deferred to on the necessity of power plant regulation initially as well as in terms of researched health and wellbeing benefits. The CAA statute on the whole, however, must be reasonably interpreted so as not to read 42 U.S.C.S. § 7412(N)(1)(a) to mean that it could ignore cost when deciding whether to regulate power plants.

    Dissenting Opinion: Justices Kagan, Ginsberg, Breyer, and Sotomayor dissented the majority of Justices Roberts, Scalia, Kennedy, Thomas, and Alito. They wrote that the EPA had indeed already considered the costs of regulation in their initial limits placed on power plants and that the EPA would continue to consider costs by developing suitable emission standards. The majority opinion would make it more difficult for the EPA to actually regulate pollutants like this in the future, setting up a poor precedent that would make the EPA less efficient at creating the regulation it was founded to enact. The majority opinion should have just referred to the EPA’s interpretation of the CAA in entirety and, consequently, their resulting decision, given the Chevron deference.

  • Section 7416 of the CAA concerns state authority in respect to air quality regulation, specifically reserving states as foremost enforcers and implementers of air quality standards. It does not explicitly preempt states from adopting laws in regards to controlling and reducing air pollution. Climate Superfund legislation, intended to tax fossil fuel companies to pay for climate change infrastructure, relies on states’ ability to regulate in-state emissions.

  • Link to the case: https://law.justia.com/cases/federal/appellate-courts/ca2/18-2188/18-2188-2021-04-01.html

    Link to the United States Code (2023 edition): https://www.govinfo.gov/app/details/USCODE-2024-title42/USCODE-2024-title42-chap85-subchapI-partA-sec7416

    Please note that the following brief was prepared by a student.

    Heading: City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021).

    Partes:

    a. Plaintiff: City of New York

    b. Defendants: Chevron Corporation, ConocoPhilips, Exxon Mobil Corporation, Royal Dutch Shell PLC, BP PLC

    2. Procedural History: This is an appeal from the United States District Court for the Southern District of New York. The district court dismissed the case.

    3. Facts: New York City is extremely vulnerable to the consequences of climate change because of its 520 mile coastline. After previous climate disasters, like Hurricane Sandy, the city has expended tens of billions of dollars on increasing climate resiliency programs and infrastructure. The defendants are major producers of greenhouse gases, which have been found to accelerate climate change and intensify natural hazards like hurricanes. NYC is suing these companies under state tort law to recover damages from global warming.

    4. Legal Issue: Does a municipality have the right to bring state tort law claims against multinational fossil fuel producers for damages caused by global greenhouse gas emissions, given the"retention of state authority" clause of 42 U.S.C. § 7416 that allows states to enforce more air pollution standards on in-state polluters?

    5. Holding: No, the court affirms the decision of the district court that the municipality does not have the right to damages according to 42 U.S.C. § 7416.

    6. Reasoning: While 42 U.S.C. § 7416 allows states to enforce stricter air pollution standards, they cannot be applied to international pollution. The court relied heavily on American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), which established that transboundary pollution affecting multiple states and nations is an inherently interstate and international problem falling within the domain of federal common law. Because the companies are contributing to global warming, it is a foreign policy concern, and thus requires application of federal law and supersedes the states authority. Additionally, the defendants were not being sued for directly polluting New York's air, but for their worldwide extraction and sale of fossil fuels, whose emissions were diffuse, global, and attributable to consumers and industrial actors across the entire planet, and thus could not be prosecuted under the assumption that they were directly polluting NY air.

    7. Dissenting Opinions: None.

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