PRACTICE

TITLE II OF THE CLEAN AIR ACT

Title II of the Clean Air Act mandates extensive regulation of mobile sources of air pollution and the fuels upon which they operate. Mobile sources include on and off-road motor vehicles, boats, trains, airplanes, and a wide-range of smaller engines and equipment, including those used in lawn-movers, handheld gardening tools, and other similar equipment. The fuels used in these mobile sources include (or have included) leaded and unleaded gasoline and diesel fuel, as well as a wide-range of fuel additives for use in those fuels. Similar regulatory programs exist in other parts of North America, Europe, Asia and Africa, and elsewhere around the globe.

I have extensive experience in nearly all facets of the U.S. mobile source regulatory program, as well as similar programs around the globe. My representation of clients in the mobile source and fuel practice area starts with a fundamental premise – the recognition that mobile sources and the fuels upon which they operate are effectively “a unified system.” As such, I recognize that a thorough understanding of the regulatory frameworks governing both mobile sources and the fuels on which they operate is essential for a sound assessment of any proposed regulatory controls for either component of the “system.”

Domestically, I have been engaged to address:

Regulatory initiatives for controlling the composition of conventional and reformulated motor vehicle fuels under § 211(c) of the Clean Air Act, as well as implementation of the associated § 211(f) restriction on use of non-substantially similar fuels and fuel additives;
All aspects of the § 211(b) program for registering fuels and fuel additives for use in the U.S.;
The certification of on-road light and heavy-duty motor vehicles under § 206 of the Act;
The reporting of motor vehicle emission component-related defects and associated vehicle recalls;
Information access and reporting requirements associated with repair of on-road motor vehicles;
The design of test methods for assessing the performance of motor vehicles and fuels, including test methods employed in state inspection/maintenance programs;
The assessment of public health and environmental risks of various fuel components;
Defense of product liability actions directed at fuel composition, including federal preemption of state liability laws.
In connection with these efforts, I have experience in all facets of administrative law, including the preparation of rulemaking comments, participation in rulemaking hearings, judicial challenges to regulations, preparation of rulemaking petitions under the Administrative Procedures Act, and the submission of Freedom of Information Act requests and associated information access litigation.

Moreover, because many of these proceedings have involved complex technical questions relating to the testing and evaluation of motor vehicles and fuels, I have extensive experience working closely with technical experts and helping to prepare expert technical reports for review by administrative or judicial authorities. These technical reports have addressed all of the major components of vehicle emission control systems, including catalytic converters, oxygen sensors, spark plugs, and fuel injectors, among others, and have evaluated how the performance of emission system components change as fuel composition changes. Many of these technical reports have also addressed the environmental and air quality impacts of fuel-driven changes in vehicle emission performance.

Internationally, I have participated in mobile source regulatory initiatives in Canada, Mexico, the European Union, Asia, and Africa. These regulatory initiatives have addressed fuel composition issues and motor vehicle performance requirements both in the developed and developing world.

The breadth of my experience is reflected in the following list of significant matters I have handled over the past two decades (Note: The results in any particular case depend upon a variety of factors unique to each case; the case results presented below do not guarantee or predict a similar result in any future case.):

Litigation

Fuel Composition: Counsel in Ethyl Corp. v. Browner, 51 F.3d 1053 (D.C. Cir. 1995), which limited EPA’s authority under § 211(f) to consider potential public health concerns as a basis for denying permission to introduce new fuels or fuel additives into commerce.
Fuel and Fuel Additive Registration: Counsel in Ethyl Corp. v. Browner, 67 F.3d 941 (D.C. Cir. 1995), which limits how EPA can implement the fuel and fuel additive registration testing program.
Motor Vehicle Certification: Lead counsel in [Ethyl Corp. v. Browner, 306 F.3d 1144 (D.C. Cir. 2002)]:(/resources/cap2000.pdf), which imposes on EPA an obligation to establish by regulation the methods and procedures used to evaluate vehicle performance under the § 206 vehicle certification program. EPA’s decision responding to a administrative petition addressing testing requirements for the vehicle certification progress is available on EPA’s website.
International Fuel Regulation: Counsel to the plaintiff in Ethyl Canada Inc. v. The Attorney General of Canada and the Minister of the Environment, No. 97-CV-126708 (Ontario Court General Division) and the associated and seminal Ethyl Corp. v. Government of Canada proceeding arising under the Chapter 11 investment provisions of the North American Free Trade Agreement (“NAFTA”), which collectively resulted in a settlement awarding the plaintiff monetary compensation as a result of a Canadian government ban on the importation or inter-provincial trade of the fuel additive, MMT®.
Freedom of Information Act (“FOIA”): Counsel in Ethyl Corp. v. Browner, 25 F.2d 1241 (4th Cir. 1994), which clarified EPA’s obligations to search for and release documents requested under the FOIA.
Attorneys Fee Recoveries: I have recovered nearly $600,000 dollars in attorneys fees from the U.S. government in connection with litigation arising under Title II.

Regulatory Activity

*§ 211(f) Waiver Proceedings: Represented an entity who sought permission from EPA to introduce a new fuel additive into commerce under § 211(f) of the Clean Air Act in 1990, 1991, and 1992. The last of these efforts resulted in the introduction of the manganese-based fuel additive, MMT®, into commerce.
Risk Assessment: Participated in a multi-year regulatory proceeding which assessed the public health and environmental risks associated with use of manganese in gasoline. The nature of the assessment is described generally in an article I wrote entitled, “Treating Uncertainty as Risk: The Next Step in the Evolution of Environmental Regulation.”
Motor Vehicle Certification: Successfully petitioned EPA to alter the program for motor vehicle certification in the U.S. to ensure that the methods and procedures used for vehicle evaluation are established by regulation and thereby disseminated to other mobile source stakeholders, such as the producers of fuels and fuel additives and aftermarket parts and service providers.
Registration Testing Programs: Lead counsel in connection with development of one of the most extensive test programs ever proposed by EPA for assessing the potential public health and environmental risks of a fuel additive.
Mobile source and fuel related regulatory rulemakings: Prepared comments and participated in dozens of EPA regulatory rulemakings. These rulemakings have addressed a wide range of issues, including reformulated gasoline, anti-dumping and “sub sim” fuel restrictions; on and off-road motor vehicle certification requirements; vehicle inspection/maintenance and emission control system performance warranty programs; and emission component related defect reporting and recalls.

International Regulatory Activity

Canada: Developed a detailed understanding of motor vehicle regulatory requirements under the Motor Vehicle Safety Act and the Canadian Environmental Protection Act, 1999, and associated regulatory and “consensus” fuel standards developed by the Canadian General Standards Board. Also prepared comments and participated in the design of an independent, third-party review to determine if Canadian fuel characteristics adversely impact advanced vehicle emission control systems.
The European Union: Prepared comments and participated in implementation of Directive 2003/17/EC and Directive 2009/30/EC concerning revisions of Directive 98/70/EC which specifies fuel quality restrictions in the European Union. Also acted as co-counsel in a legal challenge to Directive 2009/30/EC commenced in the United Kingdom in Afton Chemical Limited v. Secretary of State for Transport, Case C-343/09. The implications of the Afton Chemical Limited decision as it relates to implementation of the precautionary principle in Europe is discussed in detail in a 2011 article I wrote entitled, “A Troubling Precedent: Implementing the Precautionary Principle to Limit the Role of Science in European Decisionmaking.”
South Africa: Participated in the preparation of rulemaking comments concerning development of an implementation strategy for the control of exhaust emissions from motor vehicles and imposition of fuel specifications in the Republic of South Africa.
International Monitoring: Assessed fuel and vehicle regulatory developments in China, Australia, India, New Zealand, Mexico and Southeast Asia, among other countries.

Commercial Activities

Assisted in the commercialization of a range of bulk and aftermarket fuel additives for use in gasoline and diesel fuel in North America and elsewhere around the world.
Assisted in negotiation of contractual terms for the conduct of an extensive health testing program for a fuel additive under the Clean Air Acts fuel and fuel additive registration program.

TITLE I OF THE CLEAN AIR ACT

Title I of the Clean Air Act establishes a detailed program for the establishment, attainment, and maintenance of National Ambient Air Quality Standards (‘NAAQS’). NAAQSs are set at a level designed to protect the public health and welfare with an adequate margin of safety. To attain and maintain compliance with the NAAQSs, Title I establishes a detailed federal/state partnership and a range of control measures for limiting pollution from new and existing stationary sources, which include most industrial facilities, such as manufacturing plants, electric power producing facilities, petroleum refineries, iron and steel plants, and smelters, among others. New industrial sources generally have to meet technology-based, “New Source Performance Standards,” while existing sources must meet either “Best Available Control Technology” (BACT) standards under the prevention of significant deterioration (PSD) program, or “Best Available Retrofit Technology” (BART) under the regional haze program, or both.

As with my Title II experience, I have extensive administrative and judicial experience dealing with Title I issues. Listed below are examples of my experience:

Co-counsel to a group of coal-fired steam electric utilities and other petitioners in American Corn Growners Ass’n v. EPA, 291 F.3d 1 (D.C. Cir. 2002) challenging some elements of a regulatory program implemented by the U.S. Environmental Protection Agency (“EPA”) to control regional haze in national parks, while defending other elements of the regulatory program from attack by environmental petitioners;
Co-counsel to a variety of coal-fired steam electric utilities in enforcement proceedings commenced by the U.S. government in various federal district courts around the nation alleging that certain plants had undertaken “modifications” to the plants without application of BACT or other appropriate control technology.
Drafted an administrative petition to EPA requesting that EPA initiate additional rulemaking with respect to the program to control regional haze in the nation’s major national parks;
Co-counsel to a group of coal-fired steam electric utilities in a “Petition for a Writ of Certiorari” submitted to the U.S. Supreme Court (Appalachian Power Company et al. v. Environmental Protection Agency, No. 98-1330) seeking judicial review of a lower court decision dismissing review of EPA’s “credible evidence rule” for the enforcement of new source performance and other Title I control standards as “unripe” for review;
Participated in numerous rulemakings pertaining to the implementation and enforcement of Title I control standards;
Co-counsel to the petitioner in Westvaco Corporation v. U.S. Environmental Protection Agency, No. 89-3975 (D.C. Cir. 1989) seeking judicial review of a decision by EPA giving the force of law to “interpretations,” “operating policies,” and “guidance” without rulemaking.
Counseled a chemical manufacturer concerning state and federal “modification” requirements pertaining to changes in fuel use in industrial facilities.

OTHER FEDERAL ENVIRONMENTAL STATUTES

In addition to my experience with the Clean Air Act, I have experience working with a number of other federal environmental statutes. Some examples are listed below:

Drafted numerous rulemaking comments on behalf of a group of steam electric coal-fired electric utilities in connection with EPA’s efforts to establish a regulatory program for the control of storm water run-off from industrial facilities under the Clean Water Act.
Co-counsel to intervenor-respondents in Natural Resources Defense Council v. Environmental Protection Agency, 966 F.2d 1292 (9th Cir. 1992) which challenged various elements of EPA’s initial regulatory program for controlling storm water run-off from industrial facilities under the Clean Water Act;
Assisted in the drafting of technical expert documents pertaining to the identification and remediation of contaminated sediments under the Clean Water Act;
Participated in district court cases arising under the Superfund Act defending a potentially responsible party that transported solid wastes to various municipal landfills around the nation;
Counseled a chemical manufacturer concerning the requirements of the Emergency Planning and Community Right-to-Know Act.