AIR QUALITY PRACTICE: DESCRIPTION

McKenna Long & Aldridge has three decades of broad-gauged experience with federal, state and local air quality laws and regulations.  Across the United States and internationally, our attorneys have counseled clients on a wide variety of air quality issues - including permitting and compliance advice, defending companies against enforcement actions by state-federal agencies and citizen groups, challenging federal regulations, developing comments on proposed regulations at the state and federal levels, and many other facets of air quality law.  We also work extensively with clients on regulatory policy, legislative affairs and strategic corporate planning involving air quality issues, often in connection with our work on energy and natural resources policy.  The firm’s Air Quality Practice group also closely interacts with the firm’s Litigation and Government Affairs Practice groups – given the multi-faceted nature of these issues. 

The firm’s clients on air quality matters include:

The Air Quality Practice group is adept in the scientific and technical challenges often involved in quality air matters.  As such, we work frequently with the scientific and technical community and favor the multidisciplinary team approach in order to best serve our client’s needs.  A hallmark of our practice has been our lawyers’ ability to proactively work with clients to comply with complex laws and regulations, strategize ways to reduce potential liabilities, avoid permitting delays, develop productive relationships with local, state and federal officials, and, when necessary, negotiate practical settlement of enforcement actions.  We have also been successful in building strategic coalitions – including outreach to other stakeholders with the ability to strategically affect client outcomes.

Our experience includes routine interaction with the U.S. Environmental Protection Agency (at all levels), the White House and its Office of Management and Budget (and especially the Office of Information and Regulatory Affairs), the President’s Science Adviser, the U.S. Department of Energy, Council of Economic Advisers, the U.S. Department of the Interior and state government and regulatory offices across the nation.

Experience Overview

Sophisticated Litigation and Regulatory Counseling

• Successfully represented a national coalition in challenging EPA’s regional haze rules before the U.S. Court of Appeals in cases where the Court twice overturned EPA’s “Best Available Retrofit Technology” provisions pertaining to large stationary sources under the federal Clean Air Act.
• Successfully challenged EPA’s so-called “ethanol mandate” before U.S. Court of Appeals and subsequently convinced the Justice Department and EPA not to take any further action.
• Currently challenging in the DC Circuit a nationally applicable stationary source air quality rule on behalf of national coal, rail and utility organizations.
• Currently challenging EPA’s 8-Hour ozone NAAQS implementation rules (Phase I and Phase II) in a proceeding in the U. S. Court of Appeals.
• Successfully obtained a stay in the Fifth Circuit that enjoined EPA from enforcing the reformulated gasoline program in Baton Rouge.
• Successfully petitioned EPA and the White House to deny California’s petition for CAA rule-making to exempt the state from the reformulated gasoline program.
• Successfully obtained an exemption for a new solvent from volatile organic compound (VOC) reporting requirements, after a years-long delay.
• Successfully developed and carried out a strategy which convinced the National Toxicology Program not to propose to the Secretary of HHS the addition of a gasoline additive to the HHS’s regulatory list of potential carcinogens.
• Successfully represented a public-private coalition in obtaining the federal court dismissal of an environmental group’s citizen suit alleging state-wide violations of Class I PSD increments.
• Successfully represented utilities and manufacturer (as intervenors) in a citizen suit challenge to issuance of their PSD and Title V permits.
• Challenged California and New York bans on the use of certain fuel additives, arguing that the bans were preempted by the CAA.
• Prepared or assisted with the development of legal and technical comments on scores of EPA and other agency rule-makings, including national air quality standards, new source review, Title V operating permits, regional haze, PSD increments and MACT standards.

Effective Counseling on New and Existing Source Permitting Strategies

• Successfully managed multiple NSR/PSD permitting processes for a variety of utility (coal and gas), manufacturing, educational and electronics source construction.
• Advise utility, mining and manufacturing clients on all aspects of minor and major new source review and PSD, Title IV (Acid Rain program) and Title V permits, hazardous air pollutant and toxic air contaminant issues. 
• Reliable day-to-day compliance and permitting counseling.
• Comprehensive Title V permitting strategy development/implementation.

Protective Compliance Strategies and Enforcement Response Counseling

• Managed confidential investigations involved in responding to large and small scale EPA and state “Section 114” information requests.
• Routinely lead confidential new source review and other complex regulatory audits and compliance assessments.
• Compliance evaluation and certification strategy development.

Business and Transaction Counseling

• Coordinate all air quality aspects of due diligence investigations and advised investors, sellers and buyers on air quality related issues and risks.
• Coordinate the large-scale transfer of air permits during the course of business acquisitions.
• Three decades of experience with emissions fees, bubbling, emissions trading and emissions banking for criteria pollutants in the U.S. and for carbon emissions internationally.
• Developed a CAA non-attainment area emissions offset and banking for an air conditioning equipment manufacturer in Texas.

Strategic Development of Air Quality Science and Policy

• Successfully led a public-private coalition in defense of a state’s adoption of NSR reform regulations when challenged before state’s legislative review process.
• Represent a national energy coalition in California's multi- agency climate change greenhouse gas rulemakings.
• Represent a utility coalition in several western state mercury air rulemakings.
• Participate in EPA, state and regional planning organizations on issues such as nonattainment, visibility impairment and regional haze.
• Work closely with many state Attorneys General on air quality matters.
• Participate in state and local rulemakings and administrative proceedings.
• Addressing certain pending provisions of the recently enacted Energy legislation.
• Proposed several energy project matters to the White House Task Force on Energy Project Streamlining and have continued to pursue these with the President’s Council on Environmental Quality after the Task Force was disbanded.
• Led the efforts by fuels additive companies with respect to a major White House- led inter-agency review of Clean Air Act fuels requirements and additive health effects, including discussions with the Health Effects Institute and the National Research Council.
• Prepared the science affidavit that a federal district court relied on in rejecting New Jersey’s attempt to exit the CAA wintertime carbon monoxide control program.
• At the request of Chile Environmental Commission (CONAMA), we led a team that revised the ambient air quality standards in Chile.