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Business Law FLASHPOINTS July 2019

July 15, 2019Print This Post Print This Post

Matthew E. Cohn, Greensfelder, Hemker & Gale, P.C., Chicago
312-644-3538 | E-mail Matthew E. Cohn

Below is an excerpt from Chapter 6, Environmental Litigation: From Pollution to Takings, the Endangered Species Act, and Environmental Justice, of ENVIRONMENTAL LAW IN CORPORATE AND REAL ESTATE TRANSACTIONS — 2019 EDITION.

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Overview of Clean Air Act

The Clean Air Act was originally enacted in 1955, but was substantially revised and amended by Congress in 1970, 1977, and 1990. Under §§101(b)(2) and 101(b)(4) of the CAA, the goals of the CAA are to prevent and control air pollution. 42 U.S.C. §§7401(b)(2), 7401(b)(4). Under §101(a)(3), Congress placed primary responsibility for achieving those goals on state and local governments. 42 U.S.C. §7401(a)(3). Accordingly, the primary emphasis of the CAA is dealing with air pollutants on a statewide or regional basis under §107 of the CAA. 42 U.S.C. §7407. The primary vehicle for reaching national ambient air quality standards set by the USEPA is for each state to adopt a state implementation plan (SIP) under §110 of the CAA. 42 U.S.C. §7410.

SIPs are designed to control emissions by two types of sources: (a) “stationary sources,” defined in §111(a)(3) of the CAA as “any building, structure, facility, or installation which emits or may emit any air pollutant” (42 U.S.C. §7411(a)(3)); and (b) moving sources, principally motor vehicles, regulated separately under §202, et seq., of the CAA (42 U.S.C. §7521, et seq.). Since private civil litigation concerning nonstationary sources generally does not involve owners of property but instead typically deals with challenges to agency actions, this section and §6.8 below focus on stationary sources.

The CAA lists a large variety of hazardous air polluting chemicals in §112(b), which the USEPA has the power to review and revise under §112(b)(2). 42 U.S.C. §7412(b). The CAA sets goals for a variety of pollutants like ozone, carbon monoxide, particulate matter, and other emissions in §§181, et seq., 186, et seq., 188, et seq., and 191, et seq. 42 U.S.C. §7511, et seq. States that have not met the goals set by the CAA become part of a “nonattainment area” pursuant to §107(d). 42 U.S.C. §7407(d). Among other things, states that are in nonattainment areas must meet the goals set by §172 of the CAA, including a permitting system for construction or modification of new major stationary sources, pursuant to §172(c)(5). 42 U.S.C. §7502.

The USEPA is given a comprehensive set of enforcement mechanisms for injunctive relief and civil and criminal penalties in §113 of the CAA. 42 U.S.C. §7413. These include taking action when a state fails to enforce compliance with a SIP or a permit program as well as requiring other persons to comply with a SIP or permit program. The USEPA can act administratively under §113(d) or file a civil enforcement action in court under §113(b).

For more information about business law, see ENVIRONMENTAL LAW IN CORPORATE AND REAL ESTATE TRANSACTIONS — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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