"[G]arners praise for its notable presence in complex air emission programs and strategies"
The Legal 500 U.S. 2022
With extensive experience and breadth of knowledge handling air issues, Baker Botts is able to help companies handle their most complex air challenges. Approximately two-thirds of our environmental team concentrates on advising clients on virtually every aspect of federal and state air regulations. Our lawyers actively participate in state and federal rulemakings that implement provisions of the Clean Air Act (CAA) including Maximum Achievable Control Technology (MACT) standards, the National Ambient Air Quality Standards (NAAQS) and New Source Performance Standards (NSPS).
Our CAA experience encompasses counseling and permitting services, enforcement defense, litigation and advocacy efforts on behalf of individual clients, trade associations and industry groups.
Air Quality Litigation
We have significant experience representing clients in administrative and judicial CAA civil enforcement actions, CAA criminal prosecutions and challenges to federal and state CAA-related rulemakings. We have recently been involved in the defenses of CAA citizen suits brought by environmental groups against large stationary sources. We have also negotiated settlements of enforcement actions related to stationary and mobile source requirements, at both the federal and state level. We have worked extensively with EPA and state agencies with respect to permitting and other disputes, including the following: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Indiana, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Texas, Washington, Wyoming and Virginia.
Compliance counseling is at the core of our air quality practice. We pride ourselves on understanding the complex air regulatory environments in which our clients must operate. We have particular expertise with refining, chemical, petrochemical, refining, cement, and electric generating unit issues—but also extensive experience with other manufacturing environments such as forest products, pulp and paper, semiconductors, secondary lead smelters, mining, fiberglass, surface coating, paint manufacturing, engines, and other “heavy industry” operations. Our experience means we have the background to know how, and from where, to quickly and efficiently get the answers you need to help ensure safe, compliant operations.
Strategic Air Permitting
The result for an applicant in any permit proceeding depends in large part on a mastery of the standards and procedures for permit issuance and the legal and factual arguments that may derail or delay the permit. Our firm is suited to represent clients in permit proceedings before federal and state administrative agencies, based on our substantive knowledge of permitting law and our experience, which focuses on the representation of applicants. Our experience in air quality regulation and permitting means that there is virtually no issue that our lawyers have not already addressed. This substantive experience means that we will be able to efficiently handle the myriad of legal issues that may arise in any permit proceeding without the need to reinvent the wheel. Our preparedness translates into cost-effective service to clients, who can avoid typical traps in the permitting process.
Each significant project is analyzed up front to identify which air permits and authorizations are necessary and which of those are part of the critical path to project deadlines. The permitting strategy for any project must be closely monitored to ensure that permit proceedings are moving forward in an orderly fashion and that there is consistency among air submissions and other regulatory submissions related to the project. It is important that legal, technical and government relations representatives coordinate periodically during the permitting phase of the project to assess status and provide up to date schedule and contingency information to management.
We recognize that with the increased emphasis of regulatory agencies in public participation, it is important to develop a strategy that takes into account the involvement of affected stakeholders in the permitting process. Baker Botts offers a strategic approach to permitting. We believe in the integration of science and engineering, legal experience and public relations. Because of our ability to integrate all three of these areas into one cohesive solution, Baker Botts is well suited to handle any of your permit challenges.
Our practice includes development and implementation of comprehensive strategies to manage our clients’ issues relating to clean air matters.
Examples of these types of strategies include:
- Developing an understanding of which new rules would require duplicative controls and/or have disparate effects on our client versus its competitors. This enables us to advise clients on a strategy for how to approach the various proposed rules that are consistent with its longer-term business plan.
- Developing comprehensive air quality plans for a region. For example, we advised the BCCA Appeal Group in connection with the development of Houston’s ozone control strategy, in a manner that was favorable to the group’s members and beneficial to the region's air quality.
Emission Credit Strategies for Nonattainment Areas
Baker Botts is at the forefront of emission credit strategies to meet Nonattainment New Source Review offset requirements. For example, we received the first agency-approved use in Texas of emission credits from one nonattainment area to satisfy offset requirements in a different nonattainment area. We also received the first agency-approved use in Texas of NOx emission credits as a substitute for offset requirements relating to VOC emissions.
Our practice involves frequent dialogue and close relationships with air permitting authorities, which has given us insights and advocacy opportunities to support greater flexibility in nonattainment offsetting. For example, we were heavily involved in the Texas Commission on Environmental Quality’s 2013 release of guidance on the use of cap-and-trade program allowances as nonattainment offsets.
In addition to supporting our clients’ use of emission credit strategies, we also advise clients in connection with emission credit transactions. This aspect of our practice includes negotiating contract terms and pre-transaction due diligence of the underlying emission credits.
Our experience covers every aspect of climate change ranging from greenhouse gas regulation to projects driven by climate change considerations. Our projects have ranged from setting up international carbon investment funds to structuring Clean Development Mechanism (CDM) projects in Malaysia, from advising on compliance options under the European Emission Trading System to analyzing options under Joint Implementation in Russia. We also help U.S. corporations plan for future carbon legislation and current and future regulation, as well as drafting contracts for the purchase of voluntary carbon offsets.
We have represented clients in a variety of capacities relating to CAA fuels regulations. Our practice includes regulatory counseling, as well as litigation and dispute resolution, and our experience extends to traditional fuel sources such as diesel and gasoline, as well as non-traditional fuels including liquefied natural gas and renewables governed by the Renewable Fuel Standard.
Risk Management Program
EPA Region 6 has taken the lead in pursuing violations of the General Duty Clause found in 112(r) of the federal Clean Air Act. In addition to counseling on individual enforcement actions, Baker Botts has extensively engaged with EPA Region 6 management to help companies understand the reasons behind EPA’s actions and the factors EPA considers in determining whether to pursue RMP inspections and enforcement. On behalf of TIP, we have hosted meetings for John Blevins, then-EPA Region 6 Director of Compliance Assurance and Enforcement Division, and Steve Thompson, Region 6 Air, Toxics, and Inspection Coordinator Branch Chief, Compliance Assurance and Enforcement Division, in our Houston office and facilitated follow up meetings to discuss RMP issues at EPA’s Dallas headquarters. We have also extensively reviewed Title V reporting obligations for RMP-identified issues.
Rule Challenges and Appeals
Baker Botts’ air lawyers have represented clients in administrative and judicial proceedings challenging EPA interpretive and legislative rules. Our lawyers have experience on a range of Clean Air Act regulations that have national significance, as well as state-specific rules. In addition to favorable outcomes through litigation, we have skillfully negotiated settlements under which EPA has voluntarily revised regulations or policy or issued helpful interpretations or guidance.