Conflict in the Air
that the CAA does not preempt state tort
law claims as to intrastate sources of air
pollution.10 The court, citing the U.S. Supreme Court’s Clean Water Act preemption opinion in International Paper Co. v.
Ouellette,11 analogized that the CAA is
also a “regulatory floor, not a ceiling,” and
that “states are free to impose higher
standards on their own sources of pollution, and that state tort law is a permissible way of doing so.”12
While this debate may complicate predictions as to whether the Clean Air Act
preempts Arkansas’s new law, there is
arguably a strong case for preemption
under Act 1302. First, while federal and
state common law nuisance claims exist
separately and independently of the CAA
regulatory scheme (whether or not they
are in fact preempted), the CAA and its
regulations expressly require states to
incorporate air quality modeling into their
respective state implementation plans
(SIPs).13 Arkansas’s limitation on modeling
therefore goes to the heart of its obligations under a broad federal statute. Second, while the CAA does contain a
“savings clause”14 for states to independently regulate air emissions, Congress limited this power in that states “may
not adopt or enforce any emission standard or limitation which is less stringent”
than that required under the CAA or the
state’s SIP. Arguably, Act 1302 fails this
mandate by seeking to loosen preexisting
air modeling requirements that have become the basis for evaluating new and
modified sources under a federal regulatory scheme and ensuring compliance with
the federal NAAQS. It would not be a
stretch for EPA, or if there are legal challenges, the federal courts, to find that Act
1302 makes it impossible for industry to
comply with both federal and state law or
that the CAA regulatory scheme is so pervasive as to “occupy the field” of air regulation, thus finding preemption.
And what should industry expect if EPA
and/or the courts find that the CAA
preempts Arkansas’s Act 1302? EPA has
already promised greater oversight over
ADEQ’s current permitting program.15 The federal government
could institute an “SIP Call”—finding
elements of Arkansas’s SIP
insufficient to comply with the
NAAQS or other CAA requirements—and require Arkansas to submit a revised
SIP.16 It also could assume
control of ADEQ’s permitting program or withhold grant money
from
Arkansas.17
For companies in
Arkansas,
this
may
increase
uncertainty in
regulatory
28 | Enhesa Flash September 2013
compliance because Act 1302 could be
partially or wholly withdrawn. Given the
recent increase in U.S. air emissions regulation and the reactionary aversion to regulation in more conservative states, similar
conflicts may arise in the foreseeable future. In turn, companies should prepare by
keeping an eye on these developing federal-state conflicts and maintaining maximum flexibility in their operations and regulatory compliance regimes.
- Christian Petrangelo, US EHS Regulatory
Consultant
____________________________
1
Study: Air Pollution Causes 200,000 Early Deaths in
US, VOICE OF AMERICA, Aug. 29, 2013,
http://www.voanews.com/content/air-pollution-linked-toearly-death/1739804.html.
2
Id.
3
Virginia Shaffer & Tjeerd Hendel-Blackford, Then and
Now: The Difference Four Years Can Make in Global
Regulatory Subject Matter Focus, ENHESA FLASH, Mar.
2013, at 4, 4.
http://www.joomag.com/magazine/mag/006314400136
3842084?feature=archive.
4
Id. at 7.
5
Id. at 6.
6
See Rob Moritz, ADEQ Moving Forward with New Air
Testing Law Despite Concerns, THECABINET.NET: LOG
CABIN DEMOCRAT, June 8, 2013, http://thecabin.net/
news/state/2013-06-08/adeq-moving-forward-new-airtesting-law-despite-concerns#.UiY6uTamjJW.
7
U.S. CONST. art. VI, cl. 2.
8
Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527,
2537–38 (2011).
9
North Carolina ex rel. Cooper v. Tenn. Valley Auth.,
615 F.3d 291, 303 (4th Cir. 2010).
10
Bell v. Cheswick Generating Station, No. 12-4216,
slip op. at 23 (3d Cir. Aug. 20, 2013).
11
International Paper Co. v. Ouellette, 479 U.S. 481
(1987).
12
Bell, slip op. at 22.
13
42 U.S.C. § 7410(a)(2)(k) (2012); 40 C.F.R. §
51.112 (2012) (“The adequacy of a control strategy
shall be demonstrated by means of applicable air
quality models, data bases, and other requirements
specified in appendix W of this part . . . .” (emphasis
added)).
14
42 U.S.C. § 7416 (2012).
15
ARK. DEP’T OF ENVTL. QUALITY, FREQUENTLY ASKED
QUESTIONS REGARDING ACT 1302 IMPLEMENTATION 6
(2013), available at
http://www.adeq.state.ar.us/home/pdfs/hot_topics_201
3_air_act_1302_faq_5-17-13.pdf.
16
Id. at 7.
17
Moritz, supra note 6.