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Federal Judge rules that Washington State must regulate refinery GHG emissions under State Implementation Plan

Federal Chief Judge Marsha J. Pechman for the Western District of Washington has ruled that the Washington Department of Ecology, Northwest Clean Air Agency, and Puget Sound Clean Air Agency must regulate greenhouse gas emissions (GHGs) from the five oil refineries operating in Washington State.

A lawsuit against the agencies, filed by the Washington Environmental Council and Sierra Club in March, claimed that the state agencies had violated their obligation under Washington’s State Implementation Plan (SIP) to determine and impose “reasonably available control technologies” on refineries to control greenhouse gas emissions.

Washington’s SIP was adopted pursuant to the US Clean Air Act (CAA). Under the CAA, the Environmental Protection Agency (EPA) establishes national ambient air quality standards (NAAQS) for criteria pollutants. Each state must propose a SIP that sets emissions limits, control measures, and schedules for attaining and/or maintaining NAAQS compliance. Once a SIP is approved by the EPA, it becomes federal law and federally-enforceable. To date, the EPA has established NAAQS for six pollutants: particulate matter, sulfur dioxide, ozone, nitrogen dioxide, carbon monoxide, and lead. The EPA has not established NAAQS for GHGs.

However, the Washington Department of Ecology adopted revisions to Washington’s SIP in 1993, which the EPA later approved in 1995. Within the SIP is the provision that “No person shall cause or allow the emission of any air contaminant from any source if it is detrimental to the health, safety, or welfare of any person, or causes damage to property or business.” Washington’s definition of “air contaminants” includes GHGs and oil refineries are “emission units” or sources of air contaminants.

The defendants argued Washington’s SIP is not federally-enforceable to the extent it regulates GHGs because GHGs are not criteria pollutants with recognized NAAQS. Furthermore, they argued, even if Washington’s SIP was interpreted to impose an obligation, the CAA precludes Washington SIP from regulating beyond NAAQS.

Judge Pechman found that:

  • The state Agencies are obligated to establish reasonably available control technology (RACT) for GHG emissions under the RACT provision of the SIP.

  • The CAA allows for state SIPs to impose broader emissions standards than otherwise required by NAAQS.

  • Because the Agencies have broad discretion under the SIP, the provision is unenforceable as a citizen lawsuit.

The Court has ordered the parties to meet and confer and propose a briefing schedule regarding an appropriate remedy. The plaintiffs argue 90 days is sufficient to comply with the RACT provisions; the state agencies argue that three years is necessary to establish RACTs and regulate the five oil refineries.

The oil refineries—owned by BP, ConocoPhillips, Shell Oil, Tesoro and US Oil—are responsible for 6–8% of total state-wide greenhouse gas emissions, primarily in the form of nitrous oxide, methane, and carbon dioxide. The oil refineries were represented in the lawsuit by the Western States Petroleum Association, which intervened in the litigation.

Earthjustice and the law firm of Ziontz, Chestnut, Varnell, Berley & Slonim represented Sierra Club and Washington Environmental Council in the lawsuit.

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Reel$$

That's a lot of agencies!

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