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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2023

Air Committee Report

Aidan Riley Burkholder Freeman, H Michael Keller, Jacqueline M. Rosen, Sean Kelley, John B Lyman, Todd Palmer, Jennifer Kate Rushlow, and Douglas R Williams


  • The Air Committee Report for The Year in Review 2023.
  • Summarizes significant legal developments in 2023 in the area of air, including GHG emissions, the Clean Air Act, air quality, and more.
Air Committee Report
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I. Judicial Developments

A. Title I - National Ambient Air Quality Standards (NAAQS), Federal Implementation Plans (FIPs) & State Implementation Plans (SIPs)

In Sierra Club v. EPA, the Sixth Circuit granted a petition for review filed by environmental groups challenging EPA’s removal of Ohio’s Air Nuisance Rule (ANR) from its State Implementation Plan (SIP) under the Clean Air Act (CAA). The court held that the petitioners had Article III standing to challenge EPA’s decision, rejecting EPA’s arguments that the alleged injury would not be redressed by reinstating the ANR and that petitioners had suffered no procedural injury because they could still bring a nuisance lawsuit in the absence of the ANR. The court held that EPA’s removal of the ANR prevented the petitioners from using it to challenge pollution in Ohio and that this was enough to establish standing “without regard to the hypothetical outcome of such suits.”

Granting EPA’s request for voluntary remand, which Ohio as intervenor opposed but petitioners did not, the court did not rule on the merits of the ANR decision. Petitioners argued that EPA’s decision was an improper use of the “error-correction provision” in CAA section 7410(k)(6). EPA argued that the approval of the ANR had been in error because the ANR had no “nexus” to NAAQS implementation, maintenance, or enforcement, as required for a SIP. The court emphasized that EPA had only belatedly asserted, in its rule finalizing the removal, that the ANR was not associated with NAAQS enforcement. The court declined to vacate the ANR removal on remand, weighing the “seriousness of the agency error” against the “disruptive consequences of vacatur.”

In Midwest Ozone Group v. EPA, the D.C. Circuit denied a petition for review brought by a collective of utilities seeking to overturn EPA’s 2021 Revised Cross-State Air Pollution Update Rule for ozone. The rule, promulgated in response to a 2019 D.C. Circuit decision remanding EPA’s prior iteration, promulgates ozone pollution reduction requirements for upwind states consistent with the CAA Good Neighbor Provision, section 7410(a)(2)(D)(i). The court rejected the petitioners’ argument that EPA’s revised rule was arbitrary and capricious because the agency had used an interpolation technique to project ozone concentrations in 2021 based on prior years’ data rather than the petitioners’ preferred photochemical modeling technique, which EPA had used in previous rulemakings. The court held that EPA is not required to adhere to its own past practice in choosing a pollution assessment technique, nor is it required to use any particular method; rather, EPA is merely required to consider “the relevant factors” and “demonstrate a reasonable connection” between the facts and its decision. The court held that EPA’s techniques were sufficiently rationally connected to the facts and appropriately explained. The court also rejected the petitioners’ argument that EPA’s action was arbitrary because it was done to comply with a tight deadline for downwind attainment and therefore rushed; the court noted CAA section 7411(a)(1)’s requirement that emissions reductions should be done “as expeditiously as practicable.”

In Board of County Commissioners of Weld County, Colorado v. EPA, the D.C. Circuit, in response to a petition, held that EPA’s designation of a Colorado county as a “marginal nonattainment” area for ozone was not arbitrary or capricious, but that the agency’s designation of a Texas county as being in ozone nonattainment was impermissibly retroactive and therefore reversed it. As to Weld County, the court held EPA had not acted “inconsistently” in choosing to designate Weld as part of a nonattainment area while leaving other nearby counties out of that area. The court rejected Weld’s critiques of EPA’s line-by-line, holding EPA presented data and facts on the record that justified its decision, especially in light of “affirmative evidence” that portions of Weld contribute to the area’s nonattainment.

EPA had previously classified El Paso (the Texas county) as “in attainment” but then included it within an existing nonattainment area after that area’s attainment deadline had passed, effectively backdating the time period in which El Paso would have had to achieve attainment by three years. The court held EPA “cannot impose on States new obligations with compliance deadlines already in the past.” The court rejected EPA’s argument that the only obligation actually imposed on El Paso was the requirement that Texas submit a new SIP and thus was permissibly “prospective.” The court held EPA’s decision was a retroactive adjustment of Texas’ “legal rights” because it exposed the state to consequences it otherwise would not have faced. The court reversed EPA’s rule only as to El Paso County after finding that the rule’s non-arbitrary designation as to Weld County was clearly severable and thus could be separately preserved.

In Center for Biological Diversity v. EPA, the Third Circuit denied consolidated petitions brought by the Center for Biological Diversity (CBD) challenging EPA’s approval of two revisions to Pennsylvania’s SIP that granted seventeen major emitting facilities within the state emissions reduction technology variances. The court rejected CBD’s argument that CAA section 110(l) (Plan revisions) required EPA to consider air quality impacts in a holistic manner when approving the SIP revisions. EPA had only considered the revisions’ potential to impact emissions levels from the relevant facilities, and CBD argued this “emissions-based approach” did not ensure that the SIP did not interfere with progress toward attainment. The court held that section 110(l) permits a case-by-case approach to analysis that depends on “the specific relationship between the instrument doing the potential interfering . . . and its effect.” Regarding the challenged revisions, the court held those SIP revisions could only possibly have affected emissions, and thus it made sense for EPA to “eschew a comprehensive air quality analysis.”

The court declined to consider an argument raised by CBD in the second of its two consolidated petitions because that petition was still pending before EPA and thus could not be reviewed by a court. That petition raised a discrete argument that the SIP revisions were flawed because some of the proposed emissions control technologies themselves emit pollutants. The court denied the petition without prejudice pending EPA’s resolution of the reconsideration process.

In Heal Utah v. EPA, petitioners Heal Utah, National Parks Conservation Association, Sierra Club, and Utah Physicians challenged EPA’s final rule approving Utah’s 2019 revised regional haze SIP. The SIP adopted an alternative measure to Best Available Retrofit Technology (BART) for nitrogen oxide (NOx) emissions from Utah’s identified subject-to-BART sources, four electric generating units at two PacifiCorp coal plants. Petitioners challenged the allegedly “technically and legally flawed” dispersion modeling underlying the calculation of NOx emissions reductions. Petitioners also claimed that, when compared to the BART Benchmark calculation, Utah’s BART-alternative did not, in fact, achieve the required overall improvement in visibility. The Court disagreed with both substantive arguments, as well as the petitioners’ procedural claim that EPA did not respond to certain public comments, and upheld the final rule.

In Wyoming v. EPA, the Court heard two consolidated petitions relating to EPA’s final rule that disapproved in part and approved in part Wyoming’s SIP for nitrogen oxides (NOx) contributing to regional haze. The SIP applied to three qualifying emissions units at two PacifiCorps power plants (Wyodak and Naughton 1 and 2).

EPA’s final rule disapproved of Wyoming’s BART determination of new low NOx burners with advanced overfire air (LNB + OFA) for the Wyodak emissions unit and issued a Federal Implementation Plan (FIP) with a BART determination of LNB + OFA plus selective catalytic reduction. Wyoming and PacifiCorp petitioned for review of this aspect of the final rule. The Court found that in making its determination, EPA had wrongfully discredited Wyoming for not relying on nonbinding EPA agency guidance. The Court vacated this portion of the final rule and remanded.

EPA’s final rule approved of the BART determination of LNB + OFA for the other two emissions units (Naughton 1 and 2). Several conservation organizations petitioned for review of this aspect of the final rule on the basis that EPA should have mandated a BART determination of LNB + OFA plus selective catalytic reduction for Naughton 1 and 2, as EPA did for Wyodak. The Court found that EPA properly exercised its discretion and affirmed this portion of the final rule.

In Center for Biological Diversity v. EPA, the Center for Biological Diversity (CBD) challenged EPA’s final rule approving a revision of Colorado’s SIP on procedural and substantive grounds. The revision pertained to exclusions in Colorado’s Nonattainment New Source Review (NNSR) permit program for new or major modified stationary sources of air pollution in the Denver Metro-North Front Range area, a nonattainment area for the 2015 ozone NAAQS. The court disposed of CBD’s procedural claim that EPA violated the Administrative Procedure Act by failing to include the proposed regulations in the rulemaking docket during the comment period.

CBD’s first substantive claim pertained to the permit program’s exclusion of “emissions resulting from temporary activities, such as construction or exploration [and] . . . emissions from internal combustion engines on any vehicle” when determining whether a new or modified stationary source is “major.” CBD alleged, and the Court agreed, that the regulations implementing the CAA do not authorize the exclusion of temporary emissions when determining a stationary source’s potential to emit.

CBD also claimed that Colorado’s exclusion of emissions from internal combustion engines (ICE) on vehicles was unlawful. The CAA provides that “emissions resulting directly . . . from a nonroad engine” are excluded from the definition of new or modified major sources of air pollution. A “nonroad engine” is defined as “an internal combustion engine that . . . [b]y itself or in or on a piece of equipment . . . is portable or transportable.” The Court held that Colorado’s NNSR permit program permissibly excluded emissions from ICE vehicles, as they are a “subset of nonroad engines.”

B. New Source Review, Prevention of Significant Deterioration, New Source Performance Standards & Title V Permitting

In Port Hamilton Refining and Transportation LLLP v. EPA, the Third Circuit held that EPA exceeded its authority under the CAA in applying its Reactivation Policy and issuing a Final Determination Letter requiring the operator of a refinery that was constructed prior to August 7, 1977 and idled for several years to obtain a Prevention of Significant Deterioration (PSD) permit for resumption of operations. The court granted the refinery operator’s petition for review and vacated EPA’s Final Determination Letter.

In Port Arthur Community Action Network v. Texas Commission on Environmental Quality, the Fifth Circuit vacated and remanded a PSD permit issued to a proposed natural gas facility by the Texas Commission on Environmental Quality (TCEQ). The court first held that the petitioner organization had standing to challenge the PSD permit based on allegations of injury made by the organization’s president. The court deemed it sufficient to establish Article III injury the president’s declaration that, if the facility were permitted to emit all the pollutants authorized by the PSD permit, he would curtail the amount of time he spent outdoors. On the merits, and applying Texas law, the court held that TCEQ had not adequately explained why it selected the best available control requirements (BACT) set forth in the PSD permit. These BACT limitations allowed substantially higher emission rates than were authorized in a prior PSD permit issued to another natural gas facility using identical equipment. The court held that TCEQ had failed to justify its departure from a policy requiring any new PSD facility to reduce its emissions to a degree “at least equivalent” to those treated as BACT for prior facilities. This failing warranted vacatur and remand under Texas law.

In Port Hamilton Refining and Transportation, LLLP v. EPA, the Third Circuit granted Port Hamilton Refining and Transportation, LLLP’s (“Port Hamilton”) petition for review and vacated the EPA’s Final Determination Letter. Port Hamilton purchased an existing petroleum refinery (Refinery) in December 2021 with plans to continue operations. In November 2022, the EPA sent notice to Port Hamilton informing the new owner they are required to obtain a PSD permit per 42 U.S.C. §§ 7475(a), 7479(3) before Refinery operations could resume. Under the EPA’s Reactivation Policy an existing facility is considered “new” if the EPA regards the facility as being “shut down” and restarted, in which a PSD permit is required before operations can resume.

However, if the EPA determines the facility to be “idle,” a PSD permit is not needed. In 2018, the EPA notified the prior owner a PSD permit was not required as it was considered idled since it last operated in 2012. In 2022, the EPA reversed its 2018 decision notifying Port Hamilton an approved PSD permit was required before refinery operations could resume. Port Hamilton argued the EPA has exceeded its authority under the CAA section 7575(a) and petitioned the court to review the EPA’s 2022 decision. The court agreed with Port Hamilton because the Refinery is not new and has not been “modified” per the CAA’s definition. Further, the court concluded the EPA exceeded its statutory authority under the CAA in requiring Port Hamilton to obtain a PSD permit for the refinery, granting Port Hamilton’s petition and vacating the EPA’s decision.

C. Title II - Mobile Sources & Fuels

In Minnesota Automobile Dealers Association v. Minnesota Pollution Control Agency, the Minnesota Court of Appeals affirmed the validity of the Clean Car Rule (CCR), a rule adopted by the Minnesota Pollution Control Agency (MPCA) that incorporates by reference California's emission standards for new vehicles sold in Minnesota. The court held that the CCR does not violate Minnesota’s nondelegation doctrine because Minn. Stat. § 116.07 authorizes the Agency to adopt air-quality standards, including maximum allowable emission standards from motor vehicles. Further, MPCA did not improperly delegate future Minnesota rulemaking authority to California by incorporating California regulations “as amended” since this incorporation is limited to “minor housekeeping updates” and not major updates. The court also held that the CRR does not exceed the MPCA's statutory authority to establish a uniform statewide standard because the rule was consistent with the legislative purpose and policy goals in Minn. Stat. § 116.07, which allows the Agency to adopt air quality standards with statewide effect. Finally, the court held that Minnesota qualifies for the opt-in provision of the federal CAA, which allows states to adopt California's emission standards if the state has a designated nonattainment area. Minnesota qualified by having a lead nonattainment area even though that area achieved attainment in 2015.

In United States v. Multistar Industries, Inc., the court granted summary judgment for the United States, finding that the defendant violated CAA reporting requirements and the Emergency Planning and Community Right-to-Know Act (EPCRA). The defendant received rail cars of a hazardous substance, trimethylamine (TMA), at a transfer station and stored it for extended periods before delivering it to the end customer. The court rejected the defendant’s argument that the rail cars qualified for the transportation exemption from the hazardous substance reporting requirements in 42 U.S.C. § 7412(r)(7) (the CAA) and 42 U.S.C. § 11022 (the EPCRA). The exemption applies to hazardous substances that are stored incident to transportation. However, the defendant’s rail cars were “stationary sources” under the CAA because they sat for days or weeks decoupled from motive power before the TMA was transloaded into trucks for delivery. The rail cars were also “stationary items” under EPCRA for similar reasons.

In United Refining Company v. EPA, the Third Circuit rejected a petition for review of EPA’s denial of a refinery’s request for a hardship exemption from the Renewable Fuel Standard (RFS) program for the 2019 compliance year. The RFS program requires gasoline and diesel fuel producers to ensure that a certain portion of their annual transportation fuel production consists of renewable fuels. EPA can grant hardship exemptions to small refineries that demonstrate that compliance with the RFS program would impose a disproportionate economic hardship on them. The court held that it was not arbitrary or capricious for EPA to rely on a revised financial statement that showed a higher-than-average refining margin at United’s refinery and to refuse to consider the effects of COVID-19 on the refinery that were experienced the year after the hardship petition. The court rejected United's argument that the EPA should have followed the Department of Energy's recommendation to grant United a partial exemption. The court deferred to the EPA's interpretation of the statutory criteria for granting exemptions as a reasonable exercise of discretion in evaluating United's petition.

In California v. EPA, the D.C. Circuit denied the petitions of twelve states, the District of Columbia, and three environmental groups that challenged the EPA's Aircraft Rule, which aligned domestic aircraft emissions standards with those set by the International Civil Aviation Organization (ICAO). The court held that the EPA acted within its authority under section 231 of the CAA, which grants the agency substantial discretion to regulate aircraft emissions that endanger public health or welfare and does not mandate the consideration of any particular factors. The court also held that the EPA adequately explained its decision to harmonize domestic regulation with the ICAO standards rather than exceed them. The court rejected the petitioners' arguments that the EPA failed to follow executive orders requiring the consideration of the effects of the emissions standards on minority and low-income populations.

In Wynnewood Refining Co., LLC v. EPA, the D.C. Circuit denied petitions for review seeking to set aside an EPA rule extending the deadline for regulated entities to report compliance with the CAA’s RFS program and establishing new compliance schedules for ensuing years. Responding to missed deadlines for establishing annual requirements for the RFS, and to mitigate the burdens such missed deadlines may place on regulated entities, EPA promulgated a rule that (1) extends the deadlines by which regulated entities must report compliance with the RFS for 2019-2022 and (2) establishes compliance deadlines for 2023 and ensuing years. The effect of these measures was to reduce the amount of time regulated parties had enjoyed to report compliance after learning what EPA had determined to be the relevant annual RFS standard.

The court held that the petitioning refineries had standing to challenge EPA’s rules. Contrary to Judge Randolph’s dissent conclusion that the petitioners had failed to establish that the rule had injured or will injure them, the majority found that the shortened compliance period imposed higher financial burdens on the refineries, this causing an injury traceable to the rule that could be redressed by a successful challenge. The refineries, accordingly, had standing to maintain their challenge to the rule.

On the merits, the court rejected claims that EPA’s rule violated implicit statutory commitments to provide regulated entities with specific periods of time to comply with annual RFS requirements. Specifically, the court held that, contrary to the petitioners’ arguments, the CAA does not entitle regulated entities to 13 months’ lead time to comply or ensure a minimum of 12 months between each annual compliance deadline. The court also held that EPA’s rule was not arbitrary and capricious because it reasonably balanced EPA’s duty to meet the RFS’s requirements with its responsibility to mitigate the hardships placed in regulated entities by the agency’s delays in issuing the annual RFS standards. Finally, the court held that the rule’s establishment of future reporting deadlines in the event of delays in establishing the annual RFS standard neither conflicted with the CAA nor was arbitrary and capricious.

In Wynnewood Refining Company, L.L.C. v. EPA, the Fifth Circuit granted EPA’s transfer of venue request as required under the CAA’s venue provision. Venue is determined proper only in the District of Columbia Circuit per 42 U.S.C. § 7607(b)(1). Wynnewood challenged the EPA’s April alternative compliance approach (ACA) regarding its small refinery not being required to retire any Renewable Identification Numbers (RINs) to meet 2018 RFS obligations. Wynnewood contended the EPA should provide additional relief, such as Replacements RINs. This case revolves around CAA § 7545(o)(9)(B): in 2018, Wynnewood filed a sub paragraph (B) exemption petition, which EPA granted in August 2019. On remand, the EPA changed its position, denying the grant of Wynnewood’s 2018 exemption petition due to a new CAA interpretation.

Under the new interpretation, small refineries do not have to retire any RINs to meet 2018 compliance obligations but are instead only required to “resubmit their annual compliance reports for 2016, 2017, and/or 2018 and report their actual gasoline and diesel fuel production, actual annual RVOs, and zero RIN deficit carryforward into the following compliance year.” As a result, Wynnewood retired approximately $31 million while waiting for the EPA to adjudicate its 2018 exemption petition. Wynnewood argued its 2018-eligible RINs lost approximately $19 million in value from when the RINs were retired to when they were sent back to the refinery as an RIN that may only be used for compliance in the calendar year in which it was generated or the year following. Wynnewood sought, in addition to its 2018 RFS obligations being excused, to have its 2018-eligible RINs replaced with new RINs to meet the current RFS compliance obligations. The court concluded the EPA’s April ACA is to be based on a determination of nationwide scope or effect due to the April ACA stemming from the April denial meeting the first prong of the 7607(b)(1) proper venue requirement. The EPA’s transfer motion was granted with further proceedings transferred to the D.C. Circuit.

In Calumet Shreveport Refining L.L.C. v. EPA, the Fifth Circuit granted Calumet’s petitions for review, vacated the challenged adjudications, denied EPA’s motion to transfer to the D.C. Circuit, and remanded the case. Six refineries challenged the EPA’s decision which denied their request to exempt them from their obligations under the RFS under the CAA. Congress delegated to the EPA “the authority to (1) set annual renewable fuel percentage standards and (2) establish an RFS compliance program.” Further, Congress enacted three exemptions from the compliance program: (1) the blanket exemption under 42 U.S.C. § 7545(o)(9)(A)(i) which exempted “smaller refineries” from RFS until 2011, (2) the refinery-specific exemption under 42 U.S.C. § 7545(o)(9)(A)(ii) if the Secretary of the Department of Energy determines the small refinery is being subjected to a disproportionate economic hardship, and (3) the sub paragraph (B) exemption which allows small refineries to petition the Administrator for an extension under 42 U.S.C. § 7545(o)(9)(B).

Petitioners challenged two EPA denial actions: a denial of the petitioners’ request for exemption from their RFS obligations for 2018 on April 7, 2022; and the EPA’s June 8, 2022 denial of petitioners’ exemption request from their RFS obligations for 2016 to 2021. In a December 2021 publication, the EPA announced a revised interpretation of the statutory term “disproportionate economic hardship” in which the hardship must be caused due to RFS compliance costs. The court found the EPA’s denial actions are locally or regionally applicable, denying the EPA’s petition to transfer venue. Further, the court concluded the EPA’s denials are impermissibly retroactive, with the EPA’s interpretation of the exemption provisions being contrary to law and arbitrary and capricious.

D. Procedural & Jurisdictional Issues

In RMS of Georgia, LLC v. EPA, the Eleventh Circuit held that EPA’s allocation of permits under the American Innovation and Manufacturing (AIM) Act was a nationally applicable action that must be heard by the D.C. Circuit. RMS challenged EPA’s 2022 allocation of permits to consume hydrofluorocarbons—a chemical refrigerant. The AIM Act adopts the CAA judicial review provision and makes it applicable “as though [the AIM Act] were expressly included in title VI of [the CAA].” Under the AIM Act, challenges to “nationally applicable” actions “may be filed only in” the D.C. Circuit, while challenges to “locally or regionally applicable” actions “may be filed only” in the regional Courts of Appeals. The court concluded the challenged action was nationally applicable because its scope was not geographically limited and allowances are not geographically restricted, rejecting RMS’s arguments that “local factors” controlled the allocation action and that the individual allocations were locally applicable actions.

In Concerned Household Electr. Consumers Council v. EPA, the D.C. Circuit dismissed two consolidated petitions for review which challenged EPA’s refusal to reconsider the agency’s 2009 finding that emissions of greenhouse gases from new motor vehicles contribute to climate change and thus endanger public health and welfare (“Endangerment Finding”). The court found that neither of the petitioning organizations were directly regulated by EPA’s Endangerment Finding and that neither had demonstrated that it or any of its members had been injured or would suffer injury by the challenged EPA actions. As a consequence, both organizations lacked standing under Article III of the Constitution to maintain their challenges. One organization, Concerned Household Electricity Consumers Council (CHECC), claimed that its members were injured because the Endangerment Finding would lead to higher rates for household electricity. The court concluded, however, that CHECC could not connect the Endangerment Finding, which compels the regulation of new motor vehicles, to any increases in household electricity rates. Nor could CHECC point to any regulation based on the Endangerment Finding that affected its members.

The court also held that CHECC and the other petitioning organization, FAIR Energy Foundation, had failed to demonstrate that they had standing to sue in their own right rather than on behalf of their members. Neither organization had established that the Endangerment Finding both harms their respective organizational interests and that either organization had expended its resources seeking to counteract such harm.

In Sinclair Wyoming Refining Company, LLC v. EPA, the Tenth Circuit held an email from an EPA official denying a request to unretire certain RFS credits was not final agency action and therefore unreviewable. Sinclair applied for an RFS hardship exemption for compliance year 2018; when EPA did not act on the request within the statutory timeframe, Sinclair deposited its RFS credits—known as RINs—to ensure compliance. EPA initially denied the exemption request, then later reconsidered and approved it. On two occasions, Sinclair requested return of the 2018 RINs. Sinclair filed a petition for review of an April 2022 email from an EPA official stating the RINs would not be returned. The court held that the email was not a reviewable final agency action because it did not (1)“consummate[e]” EPA’s decision-making, (2)“determine[]” Sinclair’s “rights or obligations,” (3)impose “legal consequences,” or (4)exercise adjudicatory discretion. Rather, the email simply “restated EPA’s established position” and Sinclair should have appealed a previous agency action—the 2019 notice initially denying the hardship application; the April 2022 action denying the application for a second time following remand from the D.C. Circuit Court of Appeals; or the April 2022 action providing an alternative compliance approach for the refineries which, unlike Sinclair, had initially received exemptions in August 2019.

In the related cases Counts v. General Motors, LLC and In re Duramax Diesel Litigation, the District Court for the Eastern District of Michigan dismissed proposed class actions from drivers who allegedly overpaid for certain GM vehicles equipped with “defeat devices” that made the vehicles’ emissions comply with the CAA. While the cases were pending, the Sixth Circuit dismissed similar claims as impliedly preempted by the EPCA and its corresponding regulations for emissions testing. In that case, the Sixth Circuit held those claims conflicted with EPA’s authority to set fuel economy ratings. Following supplemental briefing, the district court followed the Sixth Circuit’s reasoning and found that the plaintiffs’ claims were “inextricably intertwined with alleged violations of the CAA”; put another way, “[w]ithout the CAA and its regulations, Plaintiffs would have no basis for their claims.”

In Texas Commission on Environmental Quality v. Vecinos Para El Bienestar De La Comunidad Costera, a Texas appeals court reversed a trial court’s finding of jurisdiction over a challenge to the Texas Commission on Environmental Quality’s (TCEQ) grant of an air permit for construction of an LNG terminal. The Natural Gas Act (NGA) vests the Federal Energy Regulatory Commission (FERC) with the “exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of” an LNG terminal. At the same time, TCEQ administers Texas’s SIP under the CAA, such that before work begins on the construction of a new facility or modification of an existing facility that may emit air contaminants, the project proponent must obtain an air-quality permit or permit amendment from TCEQ. However, the NGA also provides that review of “an order or action of a . . . State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit . . . required under Federal law” lies in the United States Fifth Circuit. The court of appeals held that TCEQ’s order was within the NGA’s special federal-circuit judicial-review provision. The permit challengers argued that the court should interpret the jurisdictional provision narrowly because its claims were purely state-law claims; the court disagreed, holding that Congress had created an exclusive federal forum for the described actions.

In Chevron U.S.A. Inc. v. EPA, the Ninth Circuit held that an EPA letter, which superseded and reversed a prior EPA letter and stated that Chevron may be subject to CAA enforcement when decommissioning oil and gas drilling platforms located on the Outer Continental Shelf, even after well abandonment and removal of all emission-generating equipment from the platforms, was not final agency action and denied Chevron’s petition for review due to lack of jurisdiction. The court stated that in changing the position put forth in its prior letter regarding enforcement, “EPA did not determine any rights or obligations or impose any legal consequences; it merely returned Chevron to a state of regulatory uncertainty.”

In Conservation Law Foundation, Inc. v. Academy Express, LLC, the United States District Court for the District of Massachusetts granted summary judgment for the defendant bus companies, holding that the plaintiff environmental advocacy organization failed to establish that it met Article III standing to maintain its suit in federal court. The plaintiff organization claimed that the defendants engaged in excessive idling in the operation of their bus fleets in violation of the CAA and anti-idling provisions in the SIPs of Massachusetts and Connecticut. On summary judgment motions, the court held that most of the injury claims regarding the plaintiff organization’s members were insufficient to establish an injury in fact under Article III. Specifically, the court held that merely breathing polluted air without an explanation of how it harms a member is insufficient to make out an injury. A few members established that breathing polluted air has curtailed the extent of their normal activities, and this had established recreational injuries. But the court held that these injuries were not shown to be traceable to the defendants’ idling.

In City and County of Honolulu v. Sunoco LP, the Supreme Court of Hawaii affirmed the circuit court’s denial of motions to dismiss for failure to state a claim and for lack of personal jurisdiction. The court considered whether state tort claims for failure to warn and deceptive promotion were preempted by federal common law and the CAA. In addition to various jurisdictional issues, the court analyzed whether preemption applied to bar state-law claims for injuries caused by interstate and international emissions. First, the court concluded that common law did not preempt such claims because the CAA displaced the common law of nuisance that had previously governed interstate pollution abatement. The court also clarified that the displaced federal common law is irrelevant to preemption analysis and, even were it relevant, it would not have preempted the state law claims where the alleged injury is based on a failure to warn and deceptive promotion, rather than on pollution or emissions. Finally, the court determined that the CAA did not preempt such tort claims because the CAA did not include express language preempting state tort claims, the CAA does not occupy the entire field of emissions, there was no obstacle preemption when the purposes of the CAA and the state claims were different, and impossibility preemption was also absent because the CAA does not bar consumer warnings.

In District of Columbia v. Exxon Mobil Corp., the United States Court of Appeals for the D.C. Circuit affirmed the District Court’s order remanding the case to the Superior Court of the District Court of Columbia because Exxon Mobil Corp. provided no basis for federal jurisdiction under the parameters set by the well-pleaded complaint rule. Remand of the case was determined proper with the District requesting a permanent injunction barring Exxon from violating the Consumer Protection Procedures Act (CPPA), damages, and civil penalties stemming from the misrepresentations made by Exxon. The District of Columbia (District) alleged Exxon, and other energy companies, deceived consumers by making material misrepresentations regarding their fossil fuel products as green, clean, and failing to warn consumers about the effect of their products on climate change. The court concluded that any connection between the alleged misrepresentations and the Companies’ operations on the Outer Continental Shelf is incidental and tenuous and therefore cannot support removal. The case was remanded to the Superior Court of the District of Columbia because the District brought suit solely under the D.C. Code and Exxon provided no basis for federal jurisdiction

E. Greenhouse Gases

In Heating, Air Conditioning & Refrigeration Distributors International v. EPA, the U.S. Court of Appeals for the D.C. Circuit concluded that the EPA lacked statutory authority to pass two measures regulating hydrofluorocarbons (HFCs), vacated those portions of the rule, and remanded to the agency. After the AIM Act directed the EPA to pass a rule phasing out HFCs and EPA promulgated such rule, two regulated companies and three trade associations challenged the rule, arguing that the agency exceeded its statutory authority and that the Act violated the nondelegation doctrine. The court largely upheld the rule but determined that the EPA’s refillable-cylinder and QR-code rules lacked a statutory basis. The court was clear that the decision was not based on the major-questions doctrine but was, instead, based on the rule of statutory interpretation that “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.”

II. Regulatory Developments

A. Title I: NAAQS, Federal Implementation Plans & State Implementation Plans

On January 27, 2023, EPA issued a proposed rule revising national ambient air quality standards for particulate matter (PM). The proposed rule would lower the primary annual PM2.5 standard. EPA proposes to retain the current standards for primary 24-hour PM2.5 and PM10, as well as the current standards for secondary 24-hour PM2.5, secondary annual PM2.5, and secondary 24-hour PM10. The proposed rule also includes revisions to the Air Quality Index and monitoring requirements.

On February 8, 2023, EPA issued a final rule revising the regulatory definition of volatile organic compounds (VOCs) under the CAA. The revision adds trans1,1,1,4,4,4-hexafluorobut-2-ene (also known as HFO–1336mzz(E)) to a list of compounds excluded from the VOC regulatory definition.

On February 13, 2023, EPA finalized disapproval of 19 states’ SIP submissions regarding interstate transport and finalized partial approval and partial disapproval of two states’ submissions. The disapprovals triggered a 2-year deadline for EPA to promulgate Federal Implementation Plans unless EPA approves subsequent SIP submissions. EPA also deferred final action on disapprovals for two states.

On Feb. 24, 2023, EPA issued a notice of proposed rulemaking “to update the current ozone absorption cross-section to the recommended consensus-based cross-section value.”

On March 10, 2023, EPA extended the deadline to April 15, 2024 for the submission of state plans submitted under the CAA per the Affordable Clean Energy rule.

On March 15, 2023, EPA made available for public review the revised “Policy Assessment for the Reconsideration of the Ozone National Ambient Air Quality Standards, External Review Draft Version 2.”

On March 23, 2023, EPA made available for public review the draft guidance document “Draft Guidance on the Preparation of State Implementation Plan Provisions that Address the Nonattainment Area Contingency Measure Requirements for Ozone and Particulate Matter.’’

On May 15, 2023, EPA published a notice that Volume 3 of the Integrated Review Plan for the Lead National Ambient Air Quality Standards would be made available for public comment.

On May 31, 2023, EPA made available for public review the document “Draft Policy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen, Oxides of Sulfur and Particulate Matter—External Review Draft (PA).”

On June 5, 2023, EPA issued a final rule promulgating Federal Implementation Plan requirements to address 23 states’ obligations to eliminate significant contributions to nonattainment, or interference with maintenance, of the 2015 ozone NAAQS in other states under the “good neighbor” provision. EPA established nitrogen oxides emissions budgets that would require fossil fuel-fired power plants in 22 states to participate in an allowance-based trading program starting in 2023. EPA also established nitrogen oxides emissions limitations for other industrial stationary sources in 20 states.

On July 3, 2023, the EPA published notice it had “designat[ed] a new equivalent method for measuring concentrations of PM10 in ambient air.”

On July 31, 2023, in response to judicial orders, EPA issued an interim final rule staying the FIP requirements in Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas, and revising other regulations to ensure these states continued to be subject to previously established requirements. The EPA also corrected deadlines that were published in the Good Neighbor Plan.

On September 12, 2023, EPA published a notice of availability for the latest Motor Vehicle Emission Simulator model (MOVES4) modeling tool for estimating emissions from cars, trucks, buses, and motorcycles for use in SIPs and transportation conformity analyses outside of California.

On September 29, 2023, in response to judicial orders, EPA issued an interim final rule staying the FIP requirements in Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia, and making revisions to ensure these states continued to be subject to the previous requirements while the Good Neighbor Plan requirements are stayed.

On October 12, 2023, EPA issued a final rule updating the ozone absorption cross-section to the recommended consensus-based cross-section value.

On October 18, 2023, EPA issued a final rule finding that “11 states failed to submit SIP revisions,” triggering CAA deadlines for the imposition of sanctions.

On November 6, 2023, EPA published notice it had designated two new equivalent methods for monitoring ambient air quality: one for measuring “concentrations of lead,” and one for “measuring concentrations of PM10 in ambient air.”

On November 17, 2023, EPA issued a final rule amending regulations governing “the process and timeline for state and Federal plans to implement CAA New Source Performance Standards for existing sources,” including a process for states to consider “remaining useful life and other factors” in applying a standard for performance.

B. New Source Review (NSR), Prevention of Significant Deterioration, New Source Performance Standards (NSPS), & Title V Permitting

On February 23, 2023, EPA finalized amendments to the 2007 National Emission Standards for Hazardous Air Pollutants (NESHAP) for Lead Acid Battery (LAB) Manufacturing Area Source. The rule revised standards of performance, which limit atmospheric emissions of lead from new, modified, and reconstructed facilities at LAB plants, among other amendments. EPA also finalized a new subpart (subpart KKa) under New Source Performance Standards (NSPS), which updates the 1982 Standards of Performance for LAB Manufacturing Plants (subpart KK).

On March 27, 2023, EPA finalized amendments to the NSPS for Industrial Surface Coating of Plastic Parts for Business Machines. The agency established a new subpart (subpart TTTa) mandating volatile organic compound (VOC) emission limitations for prime, color, texture, and touch-up coating operations for affected facilities that commence construction, modification, or reconstruction after June 21, 2022. EPA also finalized a requirement for electronic submission of periodic compliance reports.

On April 25, 2023, EPA proposed stricter NSPS and NESHAPs for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and certain polymer and resin manufacturers. The agency estimates the proposed NESHAPs will reduce HAP emissions from SOCMI flares by almost 5,000 tons per year, and that the new NSPS will reduce volatile organic compounds emissions from the same sources by 1,600 tons per year.

On May 9, 2023, EPA issued a final rule amending “new source performance standards for Automobile and Light Duty Trucks Surface Coating Operations.”

On May 23, 2023, EPA proposed a suite of changes to CAA section 111 greenhouse gas emissions requirements for fossil fuel power plants, including repealing the Affordable Clean Energy (ACE) Rule, which was vacated in 2021 by the D.C. Circuit and revived in 2022 after West Virginia v. EPA. The changes would replace the ACE by adopting stricter NSPS for greenhouse gas emissions (GHGs) from certain new and modified fossil fuel plants that are based on “green” hydrogen co-firing and carbon capture and storage (CCS), setting tighter GHG emissions guidelines for coal, oil and gas fired power plants that include natural gas co-firing, and setting GHG emissions for the largest and most frequently operated existing stationary combustion turbines across the country. Compliance with these stricter emissions levels would be staggered, with hydrogen co-firing and CCS for some units required beginning in 2032, and for large and frequently used turbines in 2038. The rule would not establish an emissions cap-and-trade program, but the proposed rulemaking encourages states to establish such programs to ease compliance. EPA expects to finalize the new emissions guidelines in June 2024.

On July 21, 2023, EPA removed the emergency affirmative defense provisions formerly codified in 40 C.F.R. sections 70.6(g) and 71.6(g) in light of a 2014 decision by the D.C. Circuit that EPA exceeded its authority in purporting to create an affirmative defense to civil penalties for certain emissions standard violations under the CAA. The affirmative defense had applied to major pollution sources under CAA title V. The rule also instructs states to remove any similar affirmative defense provisions in their state operating permit programs to be consistent with the change.

On August 25, 2023, EPA revised the new source performance standards for electric arc furnaces (EAF) and argon-oxygen decarburization (AOD) vessels in the steel industry. The rules are part of standard period review under the CAA; they set slightly more stringent monitoring requirements for AOD vessels and reduce the opacity limit for EAF melt shop emissions, among other changes.

On October 4, 2023, EPA proposed amendments to volatile organic liquid storage vessel performance requirements.

On October 23, 2023, EPA published a proposed rule to revise the EPA’s Guideline on Air Quality Models, which provides EPA-preferred models and other recommended techniques to be used in the PSD program, to include proposed “enhancements to the formulation and application of the EPA’s near-field dispersion modeling system, AERMOD, and updates to the recommendations for the development of appropriate background concentration for cumulative impact analyses.”

On November 20, 2023 EPA issued a final rule revising the NSPS subpart L for secondary lead smelters constructed, reconstructed, or modified after December 1, 2022, and revising NSPS subpart L for secondary lead smelters constructed, reconstructed, or modified after June 11, 1973, and on or before December 1, 2022. In addition, EPA Method 22 has been finalized as an alternative for demonstrating compliance with the opacity requirement.

C. Title II - Mobile Sources and Fuels

On January 24, 2023, EPA issued a final rule promulgating more stringent and expansive emission standards for heavy-duty engines and vehicles. The final rule will lower emissions of nitrogen oxides, particulate matter, hydrocarbons, carbon monoxide, and air toxics starting no later than model year 2027. The final rule is part of the “Clean Trucks Plan.”

On April 27, 2023, EPA issued a proposed rule to establish new Phase 3 GHG emissions standards for heavy-duty vehicles for model years 2028 through 2032 and revised GHG emissions standards for heavy-duty vehicles for model year 2027.

On May 5, 2023, EPA issued a proposed rule to establish new, increasingly stringent GHG and criteria pollutant (i.e., non-methane organic gases (NMOG) plus nitrogen oxides) emissions standards for light- and medium-duty vehicles for model years 2027 through 2032. The proposed standards would be applicable to passenger cars, light trucks, and large pickup trucks and vans. The proposed standards are performance-based, not technology-based, and EPA projects that one potential pathway for the industry to meet the proposed GHG standards would be through nearly 70 percent battery-electric vehicle (BEV) penetration in MY 2032 across the combined light-duty passenger car, crossover/SUV, and pickup truck categories. In addition, EPA proposed several GHG program revisions, battery durability and warranty requirements for plug-in vehicles, and revisions to small-volume vehicle manufacturer requirements.

On May 8, 2023, EPA published a notice inviting “public comment to inform the availability of zero-emission technologies in the heavy-duty vehicle and port sectors,” as directed by the Inflation Reduction Act.

On July 12, 2023, EPA established the applicable volumes and percentage standards for 2023 through 2025 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel under CAA’s RFS. The rule also established “the second supplemental standard addressing the judicial remand of the 2016 standard-setting rulemaking.” The rule also made regulatory changes to the RFS program.

On July 20, 2023, EPA published notice of its final action entitled “July 2023 Denial of Petitions for RFS Small Refinery Exemptions” denying “26 small refinery exemption (SRE) petitions under the” CAA RFS program.

On August 3, 2023, EPA issued a final rule correcting the July 12, 2023 rule that defined “the applicable volume requirements and percentage standards for the [RFS] for 2023 through 2025,” and had “made several regulatory changes to the RFS program.” This correction made “several amendatory instructions in the regulatory text in the final rule.”

On October 2, 2023, EPA issued a notice that sources which do not meet their acid rain emission limitations for nitrous oxide or sulfur dioxide must pay inflation-adjusted penalties for excess emissions.

On October 20, 2023, EPA published a finding “that lead air pollution may reasonably be anticipated to endanger the public health and welfare within the meaning of the” CAA and “that engine emissions of lead from certain aircraft cause or contribute to the lead air pollution that may reasonably be anticipated to endanger public health.”

On November 8, 2023, EPA issued a final rule revising regulations addressing federal “preemption of State and local regulation of locomotives and engines used in locomotives.” The revisions implement “a policy change to no longer categorically preempt” such regulation.

D. Title VI - Stratospheric Ozone

On April 28, 2023, EPA issued a final rule pursuant to its Significant New Alternatives Policy program listing certain substances as acceptable, subject to use conditions, in the refrigeration and air conditioning sector.

On May 24, 2023, EPA issued a notice of proposed rulemaking pursuant to its Significant New Alternatives Policy program to list certain substitutes as acceptable, subject to use, conditions, for retail food refrigeration, commercial ice machines, industrial process refrigeration, cold storage warehouses, and ice skating rinks.

On September 8, 2023, EPA issued a determination, pursuant its Significant New Alternatives Policy program, expanding the list of acceptable substitutes for use in the refrigeration and air conditioning and fire suppression sectors.

On October 19, 2023, EPA issued a notice of proposed rulemaking to establish recordkeeping and reporting requirements for uses of ozone-depleting substances as process agents and to update definitions to reflect current practice.

E. Greenhouse Gases

On February 15, 2023, EPA announced that the Draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2021 is available for public review. The inventory report was finalized in April 2023.

On May 22, 2023, EPA published a supplemental notice of proposed rulemaking that would amend specific provisions in the Greenhouse Gas Reporting Rule, including updates to the General Provisions to reflect revised global warming potentials, new GHG data reporting requirements from additional sectors, and revisions to improve rule implementation. EPA also proposed to establish and amend confidentiality determinations for the reporting of certain data elements to be added or substantially revised in the proposed amendments.

On August 1, 2023, EPA issued a proposed rule to amend provisions of the Greenhouse Gas Reporting Rule applicable to the petroleum and natural gas systems source category. In particular, the rule would amend requirements for applicable facilities concerning data gathering and reporting as well as establish and amend confidentiality determinations for the reporting of certain data elements.

F. Hazardous Air Pollutants

On January 5, 2023, EPA issued a proposed rule to amend the NESHAP for Lime Manufacturing facilities. The revised requirements would include HAP emission standards for hydrogen chloride, mercury, total hydrocarbon as a surrogate for organic HAP, and dioxin/furans.

On February 22, 2023, EPA issued a final rule to include inorganic HAP standards for process vessels into the Miscellaneous Coating Manufacturing source category under NESHAP.

On March 6, 2023, EPA revoked a May 22, 2020 finding that it is not appropriate and necessary to regulate coal- and oil-fired electric utility steam generating units (EGUs) under CAA section 112, and concluded, as it did in its April 25, 2016 finding, “that it remains appropriate and necessary to regulate HAP emissions from EGUs after considering cost.”

On March 20, 2023, EPA issued a final rule on Method 23, changing the method quality control format from prescriptive to a flexible performance-based approach, expanding the list of target compounds to include PAH and polychlorinated biphenyls, and providing facilities with a comprehensive isotope dilution method.

On April 13, 2023, EPA published a proposed rule proposing amendments to the NESHAP for Commercial Sterilization Facilities, including proposed decisions concerning the risk and technology review, proposed “amendments pursuant to the technology review for certain point source emissions, and propos[ed] amendments pursuant to the risk review to specifically address ethylene oxide (EtO) emissions from point source and room air emissions from all commercial sterilization facilities.”

On April 24, 2023, EPA published a proposed rule to amend the NESHAP for Coal-and Oil-Fired EGUs (also known as the Mercury and Air Toxics Standards or MATS) by amending “the surrogate standard for non-mercury (Hg) metal HAP (filterable particulate matter (fPM)) for existing coal-fired EGUs, the fPM compliance demonstration requirements, the Hg standard for lignite-fired EGUs, and the definition of startup.”

On April 27, 2023, EPA issued a proposed rule with amendments to “work practice standards for pressure release devices, emergency flaring, and degassing of floating roof storage vessels.”

On May 15, 2023, EPA published a proposed rule to amend the NESHAP for Taconite Iron Ore Processing Facilities to include proposed emission standards for mercury and proposed revisions of the existing emission standards for hydrogen chloride and hydrogen fluoride.

On May 18, 2023, “EPA proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Plywood and Composite Wood Products (PCWP)” adding hazardous air pollutants (HAPs) including acetaldehyde, acrolein, formaldehyde, methanol, phenol, propionaldehyde, “HAP metals, hydrogen chloride, polycyclic aromatic hydrocarbons, dioxin/ furan,” and more.

On June 5, 2023, EPA issued a notice withdrawing a proposed modification of the OSWI definition of “municipal waste combustion unit.” As a result, pyrolysis/combustion units will remain in the definition.

On June 12, 2023, EPA extended the comment period for the proposed National Emission Standards for HAPs: Plywood and Composite Wood Products (PCWP).

On June 26, 2023, EPA issued a proposed rule adding electronic reporting provisions for Reciprocating Internal Combustion Engines under NESHAP. The proposal specifies that “emergency engines can operate for up to 50 hours per year.”

On July 24, 2023, EPA published a supplemental notice of proposed rulemaking supplementing amendments proposed January, 11, 2022 for the NESHAP for Primary Copper Smelting and proposing additional HAP standards for benzene, toluene, hydrogen chloride (HCl), chlorine, polycyclic aromatic hydrocarbons (PAH), naphthalene and dioxin/furans (D/F and proposing other changes.

On July 31, 2023, EPA published a proposed rule to amend “the NESHAP for Integrated Iron and Steel Manufacturing Facilities . . . [including] propos[ed] standards for HAP emissions from five unmeasured fugitive and intermittent particulate sources . . . that are currently not regulated by the NESHAP.”

On August 9, 2023, EPA proposed changes to the Air Emissions Reporting Requirements (AERR) that would require industry to report HAP emissions, replacing the current voluntary program for HAPs. The updates would also require emissions reporting from additional facilities, including some on Native American land and in federal waters, and would add a requirement to report the use of prescribed fire.

On August 16, 2023, EPA issued a proposed rule that risks from HAP’s from the Pushing, Quencing, and Battery Stacks (PQBS) source category for coke ovens under NESHAP are acceptable. The proposal includes a requirement for fence line monitoring for benzene, new standards for several unregulated HAP or sources of HAP at facilities subject to PQBS NESHAP, and the addition of electronic reporting for performance test results and compliance reports.

On September 13, 2023, EPA issued a proposed rule to amend the NESHAP to address compliance issues related to applicability standards for sources that become major sources due to the addition of a compound to the CAA HAP list.

On September 27, 2023, EPA issued a proposed rule adding requirements for sources reclassified from major source status to area source status under NESHAP for any source choosing to be reclassified or which has been reclassified since January 25, 2018.

On November 16, 2023, EPA published a proposed rule to amend the NESHAP for Rubber Tire Manufacturing to include proposed emissions standards for the currently unregulated rubber processing subcategory of the rubber tire manufacturing industry.

On November 24, 2023, EPA issued a notice of availability for determinations, alternative monitoring decisions, and regulatory decisions for the NSPS, the NESHAP, the “Emission Guidelines and Federal Plan Requirements for existing sources, and/or for the Stratospheric Ozone Protection Program.”

On December 1, 2023, EPA issued a proposed rule “to remove the affirmative defense provisions of the [NESHAP] for both the Oil and Natural Gas Production source category and for the Natural Gas Transmission and Storage source category.

G. Cross-State Air Pollution Rule

On February 27, 2023, EPA issued a notice announcing the availability of data on preliminary calculations of emission allowance allocations for the Cross-State Air Pollution Rule (CSAP) trading programs’ new unit set-asides for the 2022 control periods.

On May 1, 2023, EPA issued a notice announcing the availability of final calculations of emission allowance allocations for the CSAP trading programs’ new unit set-asides for the 2022 control periods.

On August 24, 2023, EPA issued a notice announcing the “availability of data on new or revised default allocations of . . . NOx Ozone Season Group 3 allowances . . . for the 2023-2025 control periods” to existing units subject to the CSAP.

H. American Innovation and Manufacturing Act

On July 12, 2023, EPA issued a final rule correcting the U.S. HFC “production baselines to reflect corrected calculations for the phasedown of [HFCs].”

On July 20, 2023, EPA issued a final rule amending existing regulations under the AIM Act establishing the “methodology for allocating [HFC] production and consumption allowances for the calendar years of 2024 through 2028.” The regulations amend the HFC consumption baseline to reflect updated data.

On October 19, 2023, EPA issued proposed regulations under the AIM Act to establish a program for the management of [HFCs] that includes requirements for: leak repair and use of automatic leak detection systems for certain equipment using refrigerants containing [HFCs] and certain substitutes; the use of reclaimed [HFCs] in certain sectors or subsectors; the use of recycled [HFCs] in fire suppression equipment; the recovery of [HFCs] from cylinders; container tracking; and certain recordkeeping, reporting, and labeling requirements.

On October 19, 2023, the EPA published a notice of proposed rulemaking of the “calendar year 2024 allowances for the production and consumption of [HFCs]” pursuant to the AIM Act of 2020. EPA also finalized rules for “withhold[ing], retir[ing], and revok[ing] entities’ remaining calendar year 2023 and newly issued calendar year 2024 allowances in accordance with [EPA’s] administrative consequence regulatory provisions.”

On October 24, 2023, EPA issued a final rule addressing two petitions previously granted pursuant to the AIM Act. The rules “facilitate[] the transition to next-generation technologies by restricting use of HFCs in the sectors in which they are used.” The rules restrict the use of “HFCs within the refrigeration, air conditioning, and heat pump (RACHP), foam, and aerosol sectors.” The rule also establishes a process for submitting technology transitions petitions and “recordkeeping and reporting requirements.”

On December 26, 2023, EPA published an interim final rule stating that it will allow “one additional year, until January 1, 2026, for installation of new residential and light commercial air conditioning and heat pump systems using components manufactured or imported prior to January 1, 2025,” “amending the recently finalized Technology Transitions Program under the AIM Act.”

I. Voluntary Consensus Standards

On February 21, 2023, the EPA published a final rule incorporating by reference voluntary consensus standards associated with the “formaldehyde standards for composite wood products regulations under the Toxic Substances Control Act.” EPA also finalized its “interpretation that remote inspections by third-party certifiers are allowed in certain circumstances in the event of unsafe conditions.”

J. Other

On July 13, 2023, the EPA “finalized the rescission of the rule ‘Increasing Consistency and Transparency in Considering Benefits and Costs in the CAA Rulemaking Process’ (Benefit-Cost Rule).” The Benefit-Cost Rule was promulgated in 2020 and required a benefit-cost analysis for all significant proposed and final CAA regulations. In this action, EPA rescinded the rule because “the rule [was] inadvisable, untethered to the CAA,” and not necessary to carry out the CAA’s purposes.

On November 17, 2023, the EPA issued a notice of proposed rulemaking soliciting comment on “development of regulations to reinstate reporting of animal waste emissions from farms under the Emergency Planning and Community Right-to-Know Act.”

The Air Committee prepared this report. This report lists significant judicial decisions and nationally applicable (i.e., not project- or area-specific) regulations. Cases and regulations are listed chronologically within each section. Zachary Fayne, Samuel Pickerill, Madison Dipman, and Stanley Kaminsky edited the report. Contributing authors were Aidan R. Freeman, H. Michael Keller, Jacqueline Rosen, Fabian VanCott, Sean Kelley, John B. (Jack) Lyman, Todd E. Palmer,  Jennifer K. Rushlow, and Doug Williams. Senior Legal Assistant Leigh Logan also assisted in the preparation of this report.