11.22.16

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Air Quality Law and Regulation in the Northwest

Legal Update – Regulation and Litigation Developments in EPA Region 10

By Emerson Hilton, David Weber, and Gus Winkes

The Riddell Williams Environmental Practice Group closely tracks developments affecting air quality laws and regulations in the northwest and throughout the country.  We have extensive experience helping local, regional, and national companies comply with these laws and regulations.  Our team regularly reports on developments in EPA Region 10 for the Air Quality Committee of the American Bar Association’s Section of Environment, Energy, and Resources.  Our latest report can be found here.  Several more recent updates are provided below.

Washington

In September, the Department of Ecology finalized the Clean Air Rule, which regulates greenhouse gas emissions in Washington State.  As expected, the rule was quickly challenged by businesses and industry organizations, with suits filed in federal and state courts.  Avista Corp. v. Dep’t of Ecology, No. 2:16-cv-00335 (E.D. Wash. Sept. 27, 2016); Ass’n of Wash. Bus. v. Dep’t of Ecology, No. 16-2-03923-34 (Thurston Cty. Super. Ct. Sept. 27, 2016); and Avista Corp. v. Dep’t of Ecology, No. 16-2-03966-34 (Thurston Cty. Super. Ct. Sept. 30, 2016).  Currently, the federal litigation is on hold pending decisions in state court, where the state cases have been consolidated.

The challengers allege a suite of constitutional and statutory violations.  These include allegations that Ecology lacks the authority to issue all or part of the rule, that Ecology did not follow proper administrative procedures, and that the rule constitutes, in part, an unlawful tax.  Because compliance with the Clean Air Rule begins soon for some sources, a timely resolution is important.

In the November election, a state initiative to impose a carbon tax was roundly defeated.  The Alliance for Jobs and Clean Energy plans to advocate for an alternative carbon tax proposal in the 2017 legislative session.  For additional background on efforts to control greenhouse gas emissions in Washington, see Gus Winkes’ recent update regarding the state’s Clean Air Rule here.

Oregon

Eugene, Oregon once again finds itself at the forefront of unprecedented and novel environmental action.  On August 12, 2015, twenty-one young citizens filed a complaint in the U.S. District Court for the District of Oregon seeking an order that requires the government to create a plan to dramatically reduce greenhouse gas emissions released by the burning of fossil fuels.  The case is among a series of similar lawsuits, including one in Seattle filed by youth plaintiffs working with Our Children’s Trust, a nonprofit environmental group based in Eugene.

The Oregon plaintiffs allege that the government has failed to implement plans for climate stabilization, thereby endangering plaintiffs’ lives, liberties, and property.  According to the complaint, these risks infringe upon the plaintiffs’ constitutional rights under the Due Process Clause, Equal Protection Clause, and Ninth Amendment, and also violate the federal government’s responsibilities under the public trust doctrine.

On November 10, U.S. District Judge Ann L. Aiken rejected motions filed by the federal government and industry groups seeking to dismiss the plaintiffs’ lawsuit.  Juliana et al. v. United States et al., No. 15-cv-1517, 2016 WL 6661146 (D. Or. Nov. 10, 2016).

In her ruling, Judge Aiken noted that this lawsuit was not a typical environmental case.  “It alleges that defendants’ actions and inactions – whether or not they violate any specific statutory duty – have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”  Id. at *26.

In their motions to dismiss, the defendants asserted that the public trust doctrine applies only to the states and not to the federal government.  The Court rejected defendants’ arguments and ruled that the “federal government, like the states, holds public assets – at a minimum, the territorial seas – in trust for the people.  Plaintiffs’ federal public trust claims are cognizable in federal court.”  Id. at *24.

Alaska

On November 3, EPA announced a proposed consent decree with two environmental groups to resolve a citizen suit concerning fine particulate matter pollution in Alaska’s Fairbanks North Star Borough.  The June 2016 lawsuit had sought to force EPA to take action on Alaska’s proposed state implementation plan to attain compliance with the 2006 24-hour NAAQS for PM2.5 in the borough, which suffers from some of the worst fine particulate pollution in the country.  The proposed consent decree, if approved, would require EPA to take final action on Alaska’s implementation plan by August 28, 2017.

In a related action, the same environmental groups filed a separate citizen suit against EPA on October 11.  The more recent suit seeks to force EPA to issue a determination that the Fairbanks North Star Borough has not achieved compliance with the 24-hour NAAQS for PM2.5, and that the borough is a “serious” nonattainment area for fine particulate matter.

The October 11 lawsuit is the third action in three years by environmental groups to force EPA to take action on particulate pollution in the Fairbanks North Star Borough.  Meanwhile, Alaska regulators have proposed and adopted several recent changes to the state’s air quality regulations that are intended to address ongoing air quality issues in the borough.

Previous updates from our team can be found here and here.  Look for additional regular air quality updates from the Riddell Williams Environmental Practice Group in early 2017.


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The Riddell Williams Environmental Practice Group has played a key part in addressing some of the most challenging environmental issues in the Pacific Northwest and throughout the nation.  We serve a wide range of manufacturers, utilities and energy companies, waste management firms, private landowners, and some of the state’s leading environmental organizations.  We are currently seeking an associate to join our growing team. 

The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Riddell Williams or its clients.  This article is for general informational purposes and is not intended to be, and should not be taken as, legal advice.