2020 Environmental Real Estate IssuesIn Sierra Club v. EPA, issued August 27, the US Court of Appeals for the 3rd Circuit rejected EPA’s approval of Pennsylvania’s ozone plan (the “Plan”).  The Third Circuit characterized the Plan as a “gaping loophole” because it: 1) contained a limit for nitrogen oxides that was too lenient, 2) allowed unlawful emissions during low-temperature operations, and 3) lacked enforceable reporting requirements.

The case stems from the inability of the Pittsburg and Philadelphia urban areas to demonstrate compliance with EPA’s ambient air standard for ozone.  As a result, the Clean Air Act (CAA) required Pennsylvania to develop a plan to control the pollution that creates ozone and submit the plan to EPA for approval.  The Plan had to satisfy reasonably available control technology (RACT), characterized by the Third Circuit as “a technology-forcing standard designed to induce improvements and reduction in pollution for existing sources.”

Emission Limit too Lenient
As to the nitrogen oxides limit, the Third Circuit determined EPA and Pennsylvania could not adequately explain how this limit met RACT; it was much more lenient than the same limit for similar facilities in neighboring states and much higher than what many Pennsylvania facilities were already meeting.

Rejection of Increased Emissions at Low-Temperature Operations
The Third Circuit noted plans from other states did not allow for increased emissions during low-temperature operations, nor could EPA and Pennsylvania convincingly show how their definition of “low temperature” met RACT.  This was especially the case where, according to the Court, the Plan did not require facilities to keep and report specific temperature data that would allow governments and the public to determine if higher emissions were allowed due to low-temperature operation.

EPA Must Approve a New Pennsylvania Plan within Two Years.
In keeping with the CAA’s structure, the Third Circuit gave EPA two years to either approve an amended plan from Pennsylvania or issue a federal plan in its place.  To maintain control of this program, Pennsylvania must submit an alternative plan to EPA, giving EPA enough time to review and approve it by August 27, 2022.

For a link to the opinion https://www2.ca3.uscourts.gov/opinarch/192562p.pdf