Monday, November 27, 2017

What You Need to Know About the Clean Air Act: A Guide Especially for Attorneys and Their Clients

(Like any major law, the Clean Air Act is often the subject of rule makings and litigation. Criminal attorney Brett A. Podolsky explains what attorneys -- and their clients -- need to know.)

The Clean Air Act controls air pollution across the nation. It’s considered one of the most inclusive air quality laws on earth. The Environmental Protection Agency (EPA) is charged with the administration of the Clean Air Act and coordinates with tribal, state, and local governments. The Clean Air Act’s implementing regulations are summarized at 40 C.F.R. Subchapter C (Parts 50 – 97). 

The Air Pollution Control Act was passed in 1955. It was the first federal law pertaining to air pollution. In 1963, federal lawmakers passed The Clean Air Act:

• Amendments followed in 1965: the Motor Vehicle Air Pollution Control Act established standards to control pollutant emissions from motor vehicles, starting with 1968 models.

• The Air Quality Act of 1967 allowed the national government to ramp up activities needed to investigate and enforce air pollution transport between the states and expanded the government’s control and monitoring techniques.
The Clean Air Act of 1970 expanded federal authority to limit emissions from both stationary and moving sources of pollution.  It called on the federal government to set national health standards for widespread pollutants, and set deadlines for achieving those standards.  It also set bold new standards to limit auto emissions. 
The EPA was formally established in December 1970. New amendments in (1977) clarified rules limiting pollution in already clean-air areas, and expanded requirements in polluted areas; in  (1990) deal with toxic air pollution, acid rain, and ozone depletion. The 1990 Clean Air Act was passed to control gasoline emissions. Importantly, the Clean Air Act was the first national environmental law that allows citizens to bring lawsuits against alleged offenders.

Environmental Attorneys’ Roles under The Clean Air Act

The Clean Air Act demands federal, estate, local, and tribal governments to reduce pollution. 

Compliance with The Clean Air Act is essential. Most companies would rather comply with environmental laws but that’s not always a simple task. Most regulated entities choose to engage legal counsel to avoid compliance inspections, reviews, and possible severe punishments.

For more than four decades, environmental lawyers have worked hard to provide clients with a full range of services, including new or existing permits, business transactions, enforcement defense, appellate litigation, and representation at administrative or rulemaking proceedings.

Who’s affected by The Clean Air Act?

The Clean Air Act affects a broad spectrum of manufacturing companies, including petroleum pipeline companies, oil & gas businesses, electric generating companies, coal companies, liquefied gas storage or distribution businesses, chemical companies, pharmaceutical firms, waste disposal companies, road or infrastructure builders, and others. Clients in these sectors often require representation at litigation or rulemaking sessions involving public policy, administrative, and regulatory law issues.

Regulatory Laws

Environmental attorneys participate in a variety of rulemakings and administrative proceedings under The Clean Air Act, including those:

• Addressing implementation, development, or review of National Ambient Air Quality Standards

• Involving the controlling of new sources as per the New Source Performance Standards, Prevention of Significant Deterioration, and New Source Review programs

• Concerning Regional Haze and visibility impairment

• Controlling Hazardous Air Pollutants using MACT standards

• Involving the regulation of motor vehicle fuels, fuel additives, or motor vehicles themselves

• Concerning the development and/or implementation of emission allowance trading programs (e.g. federal NOx or Acid Rain programs)

• Involving general or transportation conformity decisions and determinations

• Concerning the requirements for Title V Operating Permit Programs (federal and state)

In rulemakings, the environmental attorneys work to make reasonable rules and to prepare a complete record should a judicial review be needed. Environmental attorneys also:

• Participate on behalf of their clients at the EPA, regional, planning organization, or state advisory committees concerning regional haze, non-attainment, or visibility impairment.

• Represent clients concerning company or source-specific matters relating to the implementation or development of rules by 1) preparing the client’s application for variances or waivers from opacity standards or federal/state emissions requirements; 2) prepare petitions for the client’s exception or alternative relating to requirements, e.g. reporting and monitoring of emissions; 3) challenge risk assessments or health effect studies intended to establish reference doses or dose and effect relationships; and 4) counsel clients about bio-accumulative toxins or the eutrification of rivers, lakes, etc., caused by the emission of nitrogen.

Compliance Auditing

Once the client’s rules are established, an experienced environmental attorney helps the client to comply with requirements by:

• Counseling the client on what’s necessary to comply with The Clean Air Act

• Educating client leaders regarding the standards needed to certify compliance, e.g. the Acid Rain Program and Title V, and helping them to develop or implement company programs to meet or maintain compliance

• Working with clients to prepare for a compliance assessment or audit

Environmental Case Litigation

Even if Environmental Justice (EJ) has decided to pursue your company for possible infractions under The Clean Air Act, it’s important to realize that the EPA doesn’t always go to court. In many instances, it may be possible to negotiate a settlement under which the agency voluntarily revises policy or regulations. 

 Brett A. Podolsky is a Criminal Legal Specialist certified by the Texas Board of Legal Specialization. He is the former Assistant Criminal District Attorney for the State of Texas. As a criminal defense attorney in Houston, Texas, Mr. Podolsky dedicates his entire practice to litigation. He accepts a wide variety of cases, including drug charges, federal crimes, white-collar crimes, and sex crimes.  

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