Last week, PA Chamber Director of Government Affairs Kevin Sunday spoke at a public hearing regarding the U.S. Environmental Protection Agency’s reconsideration of National Ambient Air Quality Standards for particulate matter. Sunday urged EPA to retain the current standards, given historic progress under the current standards and considerable implementation issues should they be lowered.
The federal Clean Air Act requires EPA to re-evaluate these rules for certain emissions, such as nitrogen oxide or ozone, every five years to determine if public health obligates a lower limit. The standards are for background air quality across the country. If a county or region measure above the limits, state and federal regulators can enforce more stringent requirements on industry and in some cases may even limit development of new highway construction.
Sunday noted in his remarks that EPA data makes clear that Pennsylvania is now, for the first time in history, measuring attainment of both particulate matter (2.5 and 10) standards. All the more remarkable, this has come while Pennsylvania has increased its manufacturing output, measured in GDP, and power generation to record highs.
Sunday also noted that manufacturers operating in non-attainment areas also have to secure emission reduction credits for compliance in those same areas, but there is currently a shortage of credits, with industry paying enormous costs for the credits. Sunday noted EPA’s policy assessment for the review identified that point sources, like manufacturers and power plants, are responsible for just 16 percent of national particulate matter emissions. The rest come from dust and wildfires – meaning that even if industry were to zero out emissions entirely, the nation is unlikely to find itself able to comply with a stringent standard of 8 ug/m3 being considered by EPA.
Written comments are due to the agency by March 28, 2023, with a final regulation expected later this year.
In a separate matter, the Pennsylvania Supreme Court issued a decision adverse to the business community in a case the Chamber filed an amicus brief to regarding the awarding of attorney’s fees in environmental permit appeals. The court ruled that the Environmental Hearing Board – the administrative court that hears challenges to DEP permitting decisions – has virtually unbounded discretion to order a permit applicant to pay attorneys’ fees and costs to third parties appealing DEP-issued permits for activities regulated under the Pennsylvania Clean Streams Law. The PA Chamber has argued that DEP’s risk exposure to paying these fees is part of the reason permit review timelines have become so protracted, as the agency wants to ensure it has contemplated all possible challenges to approving a project. These fees are viewed as a revenue source for activist groups.
The court’s decision reversed the EHB’s determination that a permit applicant can only be ordered to pay a third-party appellant’s fees and costs in cases of bad faith on the part of applicant. The DEP argued that applicants whose permits the agency had approved should, like DEP, be equally subject to potentially having to pay activist group’s legal fees.
The PA Chamber’s brief argued the EHB’s unbridled discretion to award attorneys’ fees and costs presents significant constitutional issues, which some of the judges in the majority hinted in a footnote they appeared to agree with. However, because the constitutional issue was not raised directly by parties in the case, the judges could not consider it in their decision.