Legal Issues in Integrated, Multi-Pollutant Planning for Energy and Air Quality
In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost
optimization modeling to enable state air quality districts to achieve efficient gains in air quality. At RAP’s request, the Center for Climate Change Law has undertaken an analysis of potential legal issues that might arise during the use of IMPEAQ. This white paper assesses the general statutory and regulatory framework applicable to IMPEAQ as a voluntary program for states to adopt for their air quality planning. It first addresses threshold issues: state authority under the Clean Air Act to voluntarily implement integrated planning using IMPEAQ and the permissibility of using a multi-pollutant approach to air quality planning. It then examines two key issues concerning emerging control measures: how states can use energy efficiency and renewable energy (EERE) programs in their State Implementation Plans (SIPs) and to what extent states may allow novel measures to satisfy the Act’s source-specific control technology requirements. Our analysis finds that the IMPEAQ approach would be generally permissible under the Clean Air Act and EPA policy, given the wide discretion states have to develop their air quality plans and to choose the control measures they wish to use in their SIPs. Further, emerging control measures identified through the IMPEAQ process, such as energy efficiency and renewable energy programs, may qualify for SIP credit where the state meets the specific statutory and regulatory requirements for doing so. An open
issue -- though arguably allowable under the Act -- is the degree to which states could opt to allow offsite programs to substitute for site-specific technology controls. Based on this analysis, we conclude that IMPEAQ represents a viable planning approach for states to voluntarily adopt for integrated, multi-pollutant air quality planning. The proposed general framework is allowable under the Clean Air Act and is consistent with EPA’s policy that favors a multi-pollutant analysis and encourages the use of cost-effective measures to improve air quality. However, we must caution that because the specifics of planning under the IMPEAQ approach are still under development, this paper is not intended to assess all potential aspects of IMPEAQ planning.
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