By: Christian D. Petrangelo
13th December, 2013
Air emissions regulation is on the rise in North America and throughout the world. And increasing regulatory activity inevitably breeds conflict. In the United States, this conflict often occurs between the federal government and the states. Consider Arkansas’s Act 1302, which became law on April 18, 2013,6 and prohibits the Arkansas Department of Environmental Quality (ADEQ) from measuring air quality impacts from criteria pollutants with computerized modeling during the preconstruction review of certain new and modified stationary sources.7 Specifically, Act 1302 prevents ADEQ from using air dispersion modeling unless: (1) applied to new or modified sources subject to the Clean Air Act’s (CAA’s) Prevention of Significant Deterioration (PSD or attainment) program; (2) in fulfillment of federal National Ambient Air Quality Standard (NAAQS) obligations under a current or future Nonattainment State Implementation Plan (SIP) or NAAQS SIP; or (3) the owner/operator of the source consents.8 Instead, ADEQ must gather information from the state’s 15 air pollution monitoring stations.
In this Field Report, I will analyze recent trends in CAA and broader preemption jurisprudence to determine whether federal law may preempt Act 1302. First, I will explain the constitutional foundation for preemption and the significant role of implied conflict preemption and “cooperative federalism” in the CAA. Second, I will apply these concepts to Arkansas’s Act 1302 to present arguments both for and against preemption of this law. Finally, I will conclude with the implications of this conflict for industry operating in Arkansas and other jurisdictions passing similar laws.