(Continued from page 26)
(NAAQS) attainment.6
Federal courts are also vigorously debating the extent to which the Clean Air
Act preempts state law or displaces federal law. The dispute arises from Article VI,
Clause 2 of the U.S. Constitution, the
And with increasing regulatory activity
inevitably comes conflict. In the United
States, this conflict often occurs between
the federal government and the states.
For example, on 18 April 2013, the Governor of Arkansas signed into law
Act 1302, which prohibits the ArArkansas’s prohibition may
kansas Department of Environmental Quality (ADEQ) from bring the state into conflict with
measuring air quality impacts with
mandates under the federal
computerized modeling during the
preconstruction review of certain
Clean Air Act
new and modified stationary
sources. Instead, ADEQ must
gather information from the state’s 15 air
“Supremacy Clause,” which states that “[t]
pollution monitoring stations. Supporters
his Constitution, and the laws of the Unitargue that Act 1302 reduces the regulatoed States . . . shall be the supreme Law of
ry burden on certain industrial actors
the Land.”7 The Supremacy Clause an(e.g., minor sources) whom the EPA does
chors the federal preemption doctrine,
not otherwise require to submit computerwhich generally states that federal law will
ized modeling. Nonetheless, Arkansas’s
preempt any conflicting state law. In 2011,
prohibition may bring the state into conflict
the U.S. Supreme Court ruled in Ameriwith mandates under the federal Clean Air
can Electric Power Co. v. Connecticut that
Act (CAA). Thomas Diggs, Associate Dithe CAA regulatory scheme displaced
rector for Air Programs at EPA Region 6,
federal common law nuisance claims
wrote a letter to ADEQ stating that Act
based on carbon dioxide emissions from
1302 “will affect ADEQ’s current air permit
fossil-fuel power plants.8 One year earlier,
program and we would like to remind the
the Fourth Circuit also found that the CAA
ADEQ [of] its legal obligations under the
preempted state law nuisance claims as
Clean Air Act and the Arkansas State
to power plant emissions in North CaroliImplementation Plan to protect human
na ex rel. Cooper v. Tennessee Valley
health and the environment.” Diggs sugAuthority.9 However, the Third Circuit
gested that Act 1302 could conflict with
recently broke from these holdings in Bell
federal pollution control strategy or Nav. Cheswick Generating Station, ruling
tional Ambient Air Quality Standards
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Enhesa Flash September 2013 |
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