Environmentalists File Notice of Intent to Sue Regarding Regional Haze

by Amanda A. Reeve

On February 7, 2022, Sierra Club, et al. filed a Notice of Intent to File Suit (“NOI”) over  the Unites States Environmental Protection Agency’s (“USEPA”) supposed failure to perform its duties under the Clean Air Act (“CAA”) to timely “make statutory completeness determinations and findings of failure to submit Regional Haze State Implementation Plans (“RH SIP”) for the Second Planning Period” for the following 39 states:

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Delaware

Georgia

Hawaii

Idaho

Illinois

Iowa

Kentucky

Louisiana

Maine

Maryland

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Mexico

North Carolina

North Dakota

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Utah

Vermont

Virginia

Washington

West Virginia

Wyoming

The 39 states were each required to submit its RH SIP revisions by July 31, 2021; and the USEPA was to make a determination by January 31, 2022 as to whether the SIPs meet the completeness criteria. The NOI argues that the USEPA “is now in violation of [its’] nondiscretionary duty to make that determination. Because these states have in fact failed to submit the required SIPs by the July 31, 2021 deadline,” and that the USEPA is in ‘further violation of a nondiscretionary duty to determine that these states have not submitted SIPs that meet the minimum completeness criteria.”

Sierra Club, et al. intend to file a lawsuit likely sometime around April 7, 2022.

Background Information Regarding Regional Haze

In 1977, Congress declared the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.” 42 U.S.C. §7491(a)(1).  The USEPA put forth its Regional Haze Rule in July 1999, which established regulations for improving visual air quality for 156 national parks and wilderness areas. Protecting against the visibility impairment of such national treasures as Arizona’s Grand Canyon, California’s Yosemite, Colorado’s Rocky Mountains, etc. requires that states, in coordination with the USEPA and other Federal agencies, develop and implement regulations on anthropogenic sources emitting fine pollutant particles that when encountered by sunlight cause a haze that reduces the “clarity and color of what we see.”

Under the Regional Haze Program, states were required to submit their first air plans in December 2007 with “comprehensive period revisions” to these initials plans being submitted in 2021, 2028, and then every 10 years thereafter. There are five Regional Planning Organizations (“RPOs”), each comprised of States and Tribes within the region that work together to evaluate technical information, develop strategies to reduce air pollutants and help states to meet the consultation requirements of the Regional Haze Rule.”

The Western Regional Air Partnership (“WRAP”) – the RPO established for the western states comprised of 15 States (AK, AZ, CA, CO, HI, ID, MO, NV, NM, ND, OR, SD, UT, WA, & WY), 28 Tribes, 30 Local Air Agencies, and five Federal Agencies – has a Regional Haze Planning Work Group whose purpose “is to prepare the framework to support regional planning for the 15 western states, so that needed elements will be available for RH SIP submissions in a timely fashion…” According to an October 2019 article, the Western States Air Resource Council (“WESTAR”) and WRAP announced that the “Western states are on target to complete their SIPs by the July 2021 deadline;” and yet, none of the 15 western states have yet submitted their SIPs. However, it is possible that the global pandemic of COVID-19 contributed to the derailment of the states’ progress in meeting the July 2021 deadline.