The Environmental Law Reporter” NEWS & ANALYSIS eee ee ee ee ee) kes kts) eed Articles Alexandra B. Klass, Expanding the U.S, Electric Transmission and Distribution Grid to Meet Deep Decarbonization Goals Michael J. McClary and Jessica B. Goldstein, FIFRA ac 40: The Need for Felonis for Pesticide Crimes Ene Moorman, “A Greater Sense of Urgency": EPA’ Emergency Authority Under the SDWA and Lessons From Flint, Michigan Comment John C. Evans and Donald van der Vaart, Prevention of Significant Deterioration: A Case for Repeal Dialogue (Conservation Easements in a Changing ClimateCOMMENT Prevention of Significant Deterioration: A Case for Repeal ty John C. Evans and Donald van der Vaart Joba C. Eras, J.D, caren wots fr he Noch Catlin Divison of is Quay: He previo sve ase Noth ‘Giroins Deparment of Emonmenal Qualys Genera Counsel and Chie Depry Sect He a served ine Nosh ‘Carlin Attorney Gents off, iting foe igual egultions- Donal Ra de Vast, EE PRD. JD. cure oka fo the Nnts Carling Dion of Ale Quali: He pci served asthe Secretary for che North Carlon Deparment of Eniootneral Quy ad ht work at an engine in indy, cadens, and vere ep 1 did no atend the Fane, lot Tent nie eee ying, approve of Mak Tain bud) The Prevention of Sinise Detesiration (PSD) pro- ram wis bor 45 years agp Fem purposvis interpretation ‘tthe platinudinal phase proect and enhance” corained fn the "ndings and purpose" seton of the 1970 Clean Ar Ace (CAA} The FSD progam has since metasaized in big busines, supporting sores of conslans, tch- fal experts, and lamyers’ The Donald Trump Admin cathe ps fin sgn fins any ain xe Cale fo change to the PSD progam, Past efor have provided some benefit but ingeared the complexity of lteady byzantine prog, ‘Rather than reforming the program, astongcase canbe ‘made hac the program has ben rendered ervionmentally nugaory by the dramacic gewth of the regulatory sae ‘over the pase 45 year, and therfore shouldbe repealed, By any ebjecive measure, each ofthe ements ofthe PSD program hasbeen superseded by lterlly hundreds of eg Icons reaching every aspect ca major stationary soue’s construction and operation. What remains ofthe PSD program is lil move than a ligation balefeld where fhe outcome i akways the se—delay and wlkimately 0 ‘vironmental benef. “This Comment evivate the four major clement ofthe SD progr in the context of today’s regulatory state Fae from the crits! environmental program ie ance was desrtbed as, ven ls azul ede in limiting economic di locations has boon superseded by rules thi have eargeted the very grndlacheed sourzes the PSD program was “eer Ne Ti pry bh aur ae haf thal and ones san pt of Coan pa cy 1B Canc nd an af ISD pn oft Now Sooehener an, USC S40 MOS CARGO AT ELR 10742 ENVIRONMENTAL LAW REPORTER designed to protect. Those committed 10 protecting our tsvionment have an oligaton to ensue that require program havea high environmental rae of turn, Toy the PSD program resource cose are high and the en ronmental ecu is negligible, Repealing PSD and other lowsaise programs coevesfnke resource and esto {greater publi eakh apd wellue prosction. 1. Background of the PSD Program “Mach hasbeen wren about the origins ofthe PSD per tuiting propa, The socirtobereband “New Sour Review (NSH) Manual” provides an excllen history and summary ofthe programs origins and reins eo date or purpors ofthis Comment, a condensed dlacusion provided hee “The PSD progr’ genesis can be found in the 1973 Sioa Cab #: Ructelibs case whe the cour, pehaps ‘enknowingly, found aparadeof dephants ins mouehole! Looking at te mowegeneralied purpose ofthe CAA af 1970 and applying wise can only be described a2 puro sivs Starry analysis, the court eld chat the plist CAA phrase “to protect and enhance the quay ofthe [Navona esouter equleds need fora new propa. ‘With ew attory rial guidepots, the U.S = sonmental Protection Agency (EPA) set about developing ‘eof PSD regulations An aceprable response tothe curt ‘decidon may have been program built on the relate atone: Hibsas og a dips EAR non epteahem in hn vate NAA don NEWS & ANALYSIS 47 LR 10747 these programs, new sources are subject ro the most singe of limi + Regional Haze: See above dicusion ofthe compre- tensive set of rgulations imposed on new and exe Ingsources, ‘These are only some ofthe emision contol requre- ‘ments and regultone that weve not in exlerenoe athe Xie Congress considered the BACT in 1977, With this ‘ew selon place, nealy every aspect of major atone ay soure is highly regulate, fom the largest emision ‘ons (ln, bodes) dows to even the smalese emission ‘uns, including emergency generators and even che n- tower hat ened eo eat the grasa” Tere eno ajectirc argumene that would conclude chat BACT provides for resningl eduction beyond the levels sequired by the cumrent CAA, ML, PSD Delay The Trump Administrations cent request for regulatory reform idee reled in a grea numberof eomment about the delays asocated with PSD permitting” The 2017 Environmental Lew Repore ale "EPMs New Source ‘Review Progra Tn for Reform” did superb ob documenting permit del including summarizing ver age PSD procesing tines, and offered Some aol obser ‘tions fr the long processing times" Thee i lisle to ‘edo eis summary except co say that pethaps Because of Inumili, che atl authore downplayed she imporeance ‘lhe leona den Ist noectnciencl that oe the ‘econ in 20, processing imesfor PSD permis in 2012 sed 2013 plummeted co cei lowes level an cord, = eral dan ff wn a soe ‘cin mst wn Yee aren” Sid roms “Tey Tayo (Ess ce lfm benno eee? Sree mn oh ty tey ona ‘hander HE mi iu pec eng waive ily oe tla cetera est oiler ee soho ABR i Pe hf ELK ‘sas ain 6 CO ie teammates Aes Fn 31 (Sb Tyga en eee eee eee eee eee aHowever while che “Arona fee” is a welcome eel tw PSD applians, thre exis yee another, even longer ‘use of delay—ligaton. Even after the eypleal yea Tag application proces, lage majority of highepofile PSD projects end up in ldgaton. "The PSD program, and BACT in partial is fertile pound for lengthy ligation “Thisis become che determination ofthe BACT i made“n 2 case by-case basis, taking ino acount enere, environ ‘mental; and economic impact and other costs" Unlike the overwhelming majority ofthe hundreds of pos: PSD regulations discussed in Per ILD. whee the emission standard is already determined BACT subjective, ‘As such, BACT claims can rarely be diposed of in carly stages of ligation throrgh motions ro dismies or Summary judgment Instead, peciners cam ater that there ate gene iss of mail face. Experts can die agree on the subjecve devrmination of for example, ‘whether a sbesage scrubber rn achieve 9.5% oF 999% Femoral efficiency. Absent disostion at the eatly stages ‘flisigation, PSD caer can bedeswn out over yes with extensive discovery, dueling expert reports, deposions, ‘and ie testimony, with administrative decisions followed by judicial review All of thi costly snd, perhaps more Jmporanty, dime-consuming. Unfortunately delay isthe zal of many challenges to PSD peemits.Asdemoastatadn Prt ofthis Comment, the PSD requeemens provi no demonstrable enon mental benefit beyond the eherwise aplicible CAA ‘equltemeats. PSD ligation & a way to delay a project ‘with che hope—realized in meny cases shar by the end UF the proces, ee projet will o longer be vse, Using lcigition asa means of delay ts ong been recognized by Some the ations moe notes special interes groups Tor example, Earthjustice’ website proudly reese the genesis of that onganization when in 1965, the Sierra Club Tbunched a campaign to op Wal Disney from develop Ing prope Sera Nev Clot, Aci vo Earthjustice Aces mambo of unacceu stpso hal hepo tec hugh the politcal str, he Baud of Dice of "he Shera Club athe tefl of fie awe — (Ateced a preventing he dendopment fi land) 1h San Franco aroroey working tx relced ate tk the eae all the way tn the Supeme Court wich bead the argumeac in 1971 and hatded dawn the destin 1972 The Skea Club rechnally a, bu wa lows to reat hefner court ty pun. eid the oj was apa blocked pendng completion ofan eo Fonmeotl input stay. By hs tne, Disney bad grown 47 ELR 10748 ENVIRONMENTAL LAW REPORTER ‘ed of the noo theese had ena and pled ute pjons” “The impact of delay real nd was the focus ofthe com- sent filed in March 2017 by the Nasional Envizonmentl Development Astoiton Clean Ais Projet, coalition of industry groups. They observed that “many projec are withdesen inthe U.S: because this imetable [PSD] isnot abl, patculny when there Is a shor window to take ‘advantage of marke conditions..." eis unfortunate that, the PSD program har tured ino such an elctive cool Ter delay IV. Conclusion “The PSD program was originally developed, as Senator Baucus stated ater in 2012, to prevent che flight of inde try fom meopolitn areas” by frtheing the grand fathesing of existing sources and. defining “increment designed to limit economic development in clean ar areas ‘While implementation of the CAA didnot dredly requite shutdown of the PSD grandfathered Sources, the ‘Acthas sulted la very successful generational exthana- Sia ofthese soures through application of CAA Tie IY, BART, easonable progres, CAIR, CSAPR, and mescury and ar toxic standards" Non-grandfachezed sources few or modifed soars) are sbjec 9 timers Rul: tion that male the application of PSD unnecessary. “he passage of ime and the growch ofthe regulatory state have overtaken a 4Syearold PSD program, Out opening quote of Mink Twins approval of « Tuncal ight seem premarure. However, for those who have had to implement PSD for many yeas, the simple but sage words of Puddaead Wilion sem appropriate "Al sy, “Row hard iis that we have wo dia stage compaine te come fiom the mouths of thot who have had ove” ‘ce Jobo. Brine 8 Donal on dr at Whew Sey Gd ee hm Por 4B 1 de 0). Seta hence nae ey Sent Say hetero Sy ‘Gecvaned lp, 2077. i 4 Recoil gy tn sini 00 gre ov ca apes oy nue ‘ayn 2015 EA Ne 8, 56h Seip 6: Mant eh Wn 1090 9.2017