New Source Review
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| New Source Review | |
|---|---|
| Name | New Source Review |
| Type | Environmental regulatory permitting program |
| Established | 1977 (as part of amendments) |
| Administered by | United States Environmental Protection Agency |
| Related legislation | Clean Air Act |
New Source Review is a U.S. air permitting program designed to regulate emissions from new or modified industrial facilities. It operates within the framework of the Clean Air Act and interacts with federal agencies, state environmental protection agencys, industry groups, public interest organizations, and courts. The program has been the focus of administrative rulemaking, congressional attention, and litigation involving major corporations and advocacy groups.
Overview
The New Source Review program was created amid amendments to the Clean Air Act during the 1970s and shaped by subsequent rules during the administrations of Jimmy Carter, Ronald Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama. It distinguishes between Prevention of Significant Deterioration (PSD) and New Source Performance Standards (NSPS) pathways, and intersects with programs like Title V of the Clean Air Act and State Implementation Plan processes. Key stakeholders have included the United States Environmental Protection Agency, state California Air Resources Board, industry trade associations such as the American Petroleum Institute and the United Steelworkers, environmental NGOs including Sierra Club, Natural Resources Defense Council, and Environmental Defense Fund, and legal actors like the United States Department of Justice and private law firms.
Regulatory Framework
Regulatory authority flows from the Clean Air Act as interpreted by the United States Supreme Court and applied by the United States Environmental Protection Agency. Statutory provisions interact with rulemaking influenced by the Federal Register process, notices of proposed rulemaking, and administrative law principles from cases like those before the D.C. Circuit and the United States Court of Appeals for the Ninth Circuit. Regulations reference technical standards from agencies and institutions such as the National Institute of Standards and Technology, the National Academy of Sciences, and guidance from the Council on Environmental Quality. States implement programs via State Implementation Plan submissions to the EPA Region 1, EPA Region 2, EPA Region 3, EPA Region 4, EPA Region 5, EPA Region 6, EPA Region 7, EPA Region 8, EPA Region 9, and EPA Region 10. Interagency coordination has involved the Department of Energy, the Department of Transportation, and the Occupational Safety and Health Administration when energy, transport, or worker issues arise.
Permit Application Process
Applicants—often corporations like ExxonMobil, Chevron Corporation, BP, Shell plc, General Electric, Boeing, DuPont, Dow Chemical Company, United Technologies Corporation—submit permit applications through state permitting authorities such as the Texas Commission on Environmental Quality, California Air Resources Board, or local air districts like the Bay Area Air Quality Management District and the South Coast Air Quality Management District. The permit record includes emissions inventories, control technology assessments referencing Best Available Control Technology determinations, air dispersion modeling using tools developed by the Environmental Modeling Center or academic centers at Massachusetts Institute of Technology and University of California, Berkeley, and public notice procedures that engage groups like Greenpeace and Earthjustice. Permitting often requires consultation with federal entities like the Fish and Wildlife Service and the National Marine Fisheries Service when projects affect protected species or habitats such as Everglades National Park or the Gulf of Mexico coastline.
Compliance and Enforcement
Enforcement actions have been pursued by the United States Environmental Protection Agency and the United States Department of Justice against companies including American Electric Power, Duke Energy, Southern Company, and Peabody Energy. Civil penalties, injunctive relief, and consent decrees have been negotiated with involvement from district courts such as the United States District Court for the District of Columbia and the United States District Court for the Southern District of New York. Compliance monitoring integrates continuous emissions monitoring systems certified under standards from the American Society of Mechanical Engineers and quality assurance protocols influenced by the Environmental Protection Agency's EPA QA guidelines. Citizen suits under the Clean Air Act have been filed by NGOs including Natural Resources Defense Council, Sierra Club, and Environmental Integrity Project.
Legal Challenges and Case Law
Litigation has shaped NSR doctrines through landmark cases before tribunals like the United States Supreme Court, the D.C. Circuit, and the Second Circuit. Notable decisions include rulings that clarified what constitutes a "major modification" and the applicability of clean air permits in cases involving Consolidated Edison-type projects, disputes involving Harris County, and enforcement actions against utilities like Entergy Corporation. Legal debate has involved doctrines from administrative law drawing on precedents related to the Administrative Procedure Act and doctrines articulated in cases associated with judges from circuits including the Fourth Circuit and the Eleventh Circuit.
Environmental and Public Health Impacts
Analyses of NSR outcomes involve public health institutions such as the Centers for Disease Control and Prevention, the National Institutes of Health, and research from universities like Harvard University, Johns Hopkins University, Yale University, Columbia University, and University of Michigan. Studies relate emissions changes to air quality metrics regulated under the National Ambient Air Quality Standards and address pollutants like sulfur dioxide, nitrogen oxides, particulate matter, and volatile organic compounds implicated in respiratory and cardiovascular conditions monitored by agencies like the Agency for Toxic Substances and Disease Registry. Community-level impacts have been documented in regions including Los Angeles County, Chicago, Houston, Detroit, Pittsburgh, and Cleveland and have mobilized local groups such as WE ACT for Environmental Justice and national campaigns led by Physicians for Social Responsibility.