EPA to Reconsider North Carolina Petition to Curb Air Pollution from Upwind States

May 8, 2009
by KATE VACCARO
Client Alert Newsletter May 2009

On March 5, 2009, the United States Court of Appeals for the District of Columbia Circuit granted a request by the U.S. Environmental Protection Agency ("EPA") to remand EPA's 2006 decision denying North Carolina's petition to reduce air pollution from certain upwind states, including Pennsylvania and Ohio, among others. According to Section 126 of the Clean Air Act ("CAA"), states and other entities may petition EPA if they believe pollution from upwind states will prevent them from meeting air quality standards. If EPA approves the petition, EPA may impose stricter pollution control requirements on sources in the upwind states.

EPA initially denied North Carolina’s petition, reasoning that the Clean Air Interstate Rule ("CAIR"), which EPA intended to curb nitrogen oxide ("NOx") and sulfur dioxide ("SO2") emissions that contribute significantly to nonattainment of the National Ambient Air Quality Standards for PM2.5 and 8-hour ozone in downwind areas, would provide the same protections as granting North Carolina's petition. However, after the D.C. Circuit concluded, in June 2008, that CAIR is inconsistent with the CAA and remanded the regulation to EPA, North Carolina took steps to have EPA to reconsider its petition. EPA requested that the D.C. Circuit remand North Carolina's petition for reconsideration as a result of the Court's remand of CAIR.