04/23/2018 - Regulatory Tracker

Regional Haze Rule

by EELP Staff

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Why it Matters

Haze occurs when small particles of air pollution scatter and absorb sunlight, blurring scenic views and decreasing the distance that can be seen from overlooks. In response to this problem, Congress enacted Section 169A of the Clean Air Act to protect visibility in national parks and wilderness areas. The primary pollutants that cause regional haze, including particulate matter, nitrogen oxides (NOx), sulfur dioxide (SO2), and volatile organic compounds (VOCs), are linked to serious health effects including premature death. Some of these pollutants also contribute to acid rain.

The Environmental Protection Agency (EPA) promulgated the Regional Haze Rule in 1999. The program directs states to implement pollution control plans to improve visibility and air quality at national parks, such as the Grand Canyon. States must also work toward interim, short-term progress goals, with a long-term goal of returning targeted areas to their natural visibility conditions by 2064. States have an obligation to consult with the relevant federal land managers during the plan development process, which can include the National Park Service, the U.S. Forest Service, the Bureau of Land Management, and others.

Since the implementation of the regional haze program, the average visual range has increased from 90 to 120 miles in some western parks and from 50 to 70 miles in some eastern parks. In addition to the benefits for visitors at national parks, the regional haze program delivers public health benefits. EPA estimates that during the first implementation period (2007-2018), there was a reduction in SO2 emissions of 500,000 tons per year and in NOx emissions of 300,000 tons per year.

These emission reductions have resulted from the requirement that certain older polluting facilities, like power plants, adopt pollution abatement technology that is determined to be the Best Available Retrofit Technology (BART). EPA allows this technology requirement to be met through a variety of methods including installing and operating specific technology, like scrubbers; requiring that sections of the facility periodically shut down to decrease overall annual emissions, known as “seasonal curtailment;” or integrating the power plants into the interstate emissions trading program such as the Cross-State Air Pollution Rule.

The first state regional haze plans were due to EPA in 2007. Progress reports are required every 5 years and plan revisions are required every decade, with the first full revision originally due by 2018. If states fail to submit a satisfactory plan, EPA is required to develop a federal plan for the state. At the close of the Trump Administration, EPA was in the final stages of implementing an April 12, 2018 presidential directive to review all existing regional haze Federal Implementation Plans (FIPs) and to develop options to replace those plans with State Implementation Plans (SIPs).

EPA is also involved in ongoing litigation with multiple states and regulated industries regarding the adequacy of the states’ SIPs and the consequent FIPs that EPA promulgated. In many cases, the litigation and the FIP involve only a portion of the state’s plan, including pollution controls for specific power plants.

Current Status

On September 10, 2018, the Trump Administration released a Regional Haze Rule reform roadmap, which prioritizes states’ determining emissions controls and relying on other Clean Air Act programs to improve visibility. Now, under the Biden administration, EPA will review SIPs, which were due July 31, 2021, consistent with the guidance EPA released on July 8, 2021, which EPA indicates responds to stakeholder questions.

Timeline of Events

obama administration
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May 30, 2012 EPA issues a rule allowing states to include certain older power plants that emit haze-causing pollutants in a state’s CSAPR plan. If the state chooses to regulate the facility under CSAPR, the facility would meet its requirements under the Regional Haze Rule and thus not need to install Best Available Retrofit Technology pollution controls. There is ongoing litigation regarding the legality of this final rule, Utility Air Regulatory Group v. EPA, No. 12-1342. Oral argument was held in the U.S. Court of Appeals for the D.C. Circuit on Nov. 16, 2017.

May 4, 2016 EPA issues a separate proposed rule to strengthen the Regional Haze Rule by updating and amending the requirements for state plans, Protection of Visibility: Amendments to Requirements for State Plans. After an extension to the comment period, comments are due on Aug. 10, 2016.

Dec. 14, 2016 EPA issues a final rule with an effective date of Jan. 10, 2017. The rule includes a number of significant technical, measurement, and definitional changes to the Regional Haze Rule. It also includes a proposal to enhance the federal land manager consultation requirements and to better integrate states’ long-term and reasonable progress goals for visibility. The rule extends the next deadline for state implementation plans from 2018 to July 31, 2021.

Jan. 18, 2017 The State of Texas petitions the U.S. Court of Appeals for the D.C. Circuit to review the Dec. 14, 2016 final rule. No. 17-1021.

Trump administration
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Feb. 22, 2017 The National Parks Conservation Association and the Sierra Club move to intervene in Texas’ case on behalf of EPA.

March 10, 2017 The State of Alaska, the Utility Air Regulatory Group (UARG), and the Chamber of Commerce file separate petitions for review of the final rule, Nos. 17-1074, 17-1075, 17-1076 respectively.

March 13, 2017 The State of North Dakota, No. 17-1080, the State of Arkansas, No. 17-1079, National Parks Conservation Association and a coalition of environmental groups, No. 17-1078, as well as four additional industry representatives, Nos. 17-1077, 17-1082, 17-1083, 17-1084, file petitions for review. In addition, industry groups and UARG send letters to EPA directly, petitioning the agency to reconsider the rule.

March 15, 2017 The court consolidates the 11 cases as State of Texas, et al v. EPA, et al, No. 17-1021 (D.C. Cir.).

March 24, 2017 The State of Alaska petitions EPA to reconsider and stay the rule, citing provisions regarding the impact of international air emissions on states’ visibility goals.

April 12, 2017 UARG files a motion to intervene on behalf of EPA in the environmental groups’ challenge to the rule, No. 17-1078, consolidated with No. 17-1021.

Jan. 17, 2018 EPA responds to the three petition letters and announces its decision to review the final rule, including the federal land manager consultation requirements and the provisions related to the determination that regional haze is reasonably attributed to a particular source. EPA also announces that it plans to finalize additional guidance documents for the state plans that are due in 2021.

Jan. 19, 2018 EPA files a motion to hold the case in abeyance pending its review of the final rule. Environmental groups support this motion.

Jan. 30, 2018 The court grants EPA’s motion to hold the case in abeyance.

April 12, 2018 President Trump directs EPA to review EPA’s engagement with states as part of the regional haze program.

Sep. 10, 2018 EPA releases a Regional Haze Reform Roadmap, which prioritizes giving more power to the states to determine emissions controls and relying on other Clean Air Act programs to improve visibility.

Aug. 20, 2019 EPA releases guidance for state implementation plan development under the regional haze program. The guidance is intended to implement the 2018 Reform Roadmap by leaving emissions controls to other Clean Air Act programs and state emission control programs. Critics argue that this guidance allows states to simply ignore how pollution impacts visibility in parks and offers little advice on how to identify pollution sources for emission reduction analysis.

biden administration

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July 8, 2021 EPA issues a guidance memo to regional directors regarding the second planning period for regional haze SIPs, and includes for the first time an environmental justice section encouraging states to consider whether there may be equity and environmental justice impacts when developing their regional haze strategies for the second planning period. While the memo notes states have discretion, EPA explains that such consideration could include “undertaking meaningful outreach to environmental justice communities; ensuring adequate opportunity for feedback on states’ proposed strategies; and considering equity and environmental justice impacts as part of the technical analyses supporting the SIP, including source selection and four-factor analyses.”