AGENDA #5d
TO: Mayor and Town Council
FROM: Ralph D. Karpinos, Town Attorney
SUBJECT: Response to Petition regarding US Environmental Protection Agency Rules
DATE: February 24, 2003
On February 10, 2003, the Council received and referred a petition regarding new rules adopted by the United States Environmental Protection Agency pertaining to the New Source Review provision of the Clean Air Act. “New Source Review” refers to the Clean Air Act requirement that a major stationary pollution source must undergo a review of its pollution control devices (and potentially install new modern devices) when the source makes a physical or operational change that results in some not-insignificant increase in emissions.
We recommend no action be taken in response to the petition. If the Council so chooses, adoption of the attached resolution would authorize the Mayor to send a letter to the Attorney General of North Carolina on behalf of the Town supporting the filing of a petition for review of the EPA’s rules on behalf of the State of North Carolina.
BACKGROUND
On February 10, 2003, the Town Council received and referred to the Town Attorney a petition presented on behalf of the Canary Coalition. According to their website, www.canarycoalition.org, the Canary Coalition is “A Grassroots Clean Air Movement” based in western North Carolina.
The petition asked the Council to take two separate actions:
The Rules adopted by the US Environmental Protection Agency will “increase energy efficiency and encourage emissions reductions” according to an announcement issued by EPA on November 22, 2002. (Attachment 1 is a copy of EPA’s press release. Attachment 5 is an overview of the Final Rule from the Federal Register. A entire explanation in the Federal Register and copy of the Rule can be reviewed at http://www.epa.gov/air/nsr-review/02-31899.pdf .)
According to the Canary Coalition, the new rules “loosen emission control requirements” under the Clean Air Act. (Attachment 2 is a copy of a press release issued by the Canary Coalition.)
Nine states have filed a petition for review of the final EPA rule in the United States Court of Appeals for the District of Columbia Circuit. The deadline for seeking to join that proceeding has passed. The deadline for filing an independent petition is March 3, 2003.
DISCUSSION
It is our understanding that the State of North Carolina is considering filing a petition seeking review of the EPA Rules. Any such petition would need to be filed in the U.S. Court of Appeals for the District of Columbia Circuit. A second, more detailed petition would need to be filed with the EPA to urge reconsideration of the rules. Because of the lead time necessary to prepare these filings, we understand that it is possible that a decision on whether petitions will be filed on behalf of North Carolina will have been made by the State before the Council’s February 24 meeting.
1. Response to request that Town file a petition in Federal Court. Based on the limited understanding we have been able to develop regarding this matter given these time constraints, we do not recommend that the Council act to initiate a petition on behalf of the Town in the U.S. Court of Appeals for the District of Columbia Circuit for the following reasons:
a) We believe that it would be necessary to engage outside counsel who is qualified to practice in the U.S. Court of Appeals, District of Columbia Circuit, and familiar with Federal environmental law and regulations in order to file and pursue a legal challenge to rules adopted by a Federal agency. We further believe that the costs associated with retaining outside counsel to file and pursue such a legal proceeding would be significant.
b) We believe that the Petition filed on behalf of nine states will raise any appropriate issues before the Court of Appeals and that the Town of Chapel Hill would not, as a separate petitioner, be likely able to present any significant additional issues or arguments to the Court.
c) We believe there may not be sufficient time to determine whether the Town supports the position we are being requested to advocate, retain counsel, and file a petition in Federal Court.
2. Response to request that Town urge the North Carolina Attorney General to file a Petition in Federal Court. With respect to the possible filing of a petition by the State of North Carolina, the attached resolution would authorize a letter from the Mayor to the Attorney General of North Carolina, on behalf of the Council, supporting the filing of a petition on behalf of the State. Adoption of this resolution is not recommended, however, for the following reasons:
a) We do not have sufficient familiarity with the issues or expertise in environmental law and policy to be able to form an independent professional judgment regarding the EPA rule change or whether the position advocated by the Canary Coalition is reasonable.
b) There is not sufficient time prior to the deadline for filing such a petition in which to develop that expertise and make such an evaluation.
c) It is our understanding that the decision by the State regarding filing such petitions may already be made by the time the Council considers this matter on Feb. 24 (We may have more up-to-date information on Monday evening.)
d) Under section 10 of the Clean Smokestacks Act (North Carolina Session Law 20002-4 (Attachment 3)), the General Assembly intends that the State “use all available resources and means . . . to achieve reductions in emissions of oxides of nitrogen and sulfur dioxide . . . .” We understand the State is considering the current case and other issues involving emissions generated in jurisdictions upwind of North Carolina to determine the most productive avenue(s) for the State to pursue regarding these upwind emissions. We do not believe we have a factual basis or the expertise in environmental law and policy necessary to make our own evaluation of these priorities.
e) We believe that the nine states that have already filed a petition are able to bring to the Court the issues necessary for a full evaluation of the merits and that additional petitions filed by additional parties repeating the same arguments will not likely influence the Court’s determination of the case.
RECOMMENDATION
That the Council take no further action regarding this petition. Adoption of the attached resolution would ask the Attorney General of North Carolina to file a petition on behalf of the State seeking judicial review of the EPA Rules.
ATTACHMENTS:
1. EPA Press Release (p. 5).
2. Canary Coalition Press Release (p. 8).
3. North Carolina Session Law 2002-4 (p. 10).
4. February 10, 2003 Petition materials (with additional materials from Canary Coalition) (p. 22).
5. Excerpt from Federal Register, including Overview of New Source Review Final Rule (p.42).
A RESOLUTION AUTHORIZING THE MAYOR TO SEND A LETTER TO THE ATTORNEY GENERAL OF NORTH CAROLINA URGING THE FILING OF A PETITION FOR REVIEW AGAINST THE U.S. ENVIRONMENTAL PROTECTION AGENCY SEEKING REVIEW OF RECENTLY ENACTED NEW SOURCE RULES (2003-02-24/R-6)
BE IT RESOLVED by the Council of the Town of Chapel Hill that the Mayor is hereby authorized to send a letter on behalf of the Town to the Attorney General of North Carolina urging the filing of a Petition for Review against the U.S. Environmental Protection Agency for revising Rules regarding the New Source Review provisions of the Clean Air Act.
This the 24th day of February, 2003.