D.C. Circuit rules against EPA in challenge to NAAQS changes

In a two-to-one ruling, the U.S. Court of Appeals for the District of Columbia Circuit has ruled against the Environmental Protection Agency (EPA) in a challenge brought by the Natural Resources Defense Council (NRDC) over changes EPA made to 2008 standards for ozone.

EPA is required to periodically revisit its National Ambient Air Quality Standards (NAAQS). NRDC challenged two key changes that EPA made to its more stringent 2008 ozone standards.

“First, EPA allowed affected regions more time to attain the new ozone standards—roughly a one-third increase in time for certain areas, amounting to an additional year—as compared with the previous revision,” according to the D.C. Circuit.

Second, EPA revoked certain requirements, known as transportation conformity requirements, applicable to areas that had yet to attain governing ozone standards or that had recently come into attainment but remained under obligations aimed to prevent any reversion to nonattainment status, the court said.

The transportation conformity requirements obligate affected regions to assure that any proposed project to develop transportation infrastructure—potentially resulting in significantly increased emissions—will align with the maximum emissions levels established in EPA-approved plans for meeting air quality standards.

“We conclude that both challenged aspects of EPA’s regulations implementing the 2008 ozone standards exceed the agency’s authority under the Clean Air Act,” the court majority held.

“First, with regard to the attainment deadlines, all statutory indications militate against allowing the agency’s lengthening of the periods for achieving compliance with revised air quality standards,” the court said.

“Indeed, the last time EPA issued revised standards for ozone, EPA itself declined to extend the attainment periods in essentially the same way it now proposes, concluding that such an adjustment could not be squared with the statute,” the court said.

“Second, with regard to the revocation of transportation conformity requirements, the terms of the statute straightforwardly require maintaining those requirements for affected areas,” the court said.

“Because we find that the EPA’s challenged implementation rules exceed the agency’s authority under the Clean Air Act, we vacate the pertinent portions of EPA’s regulations,” the court held.

Dissent questions majority analysis of EPA case

Circuit Court Judges Sri Srinivasan and David Tatel made up the court majority in this case. A dissenting opinion was filed by Senior Circuit Judge Raymond Randolph.

“The majority opinion treats this case as if it were facing a linguistic puzzle,” Judge Randolph said in the dissent. “The court’s solution, we are told, is better than EPA’s. And so the court sets aside two important aspects of EPA’s regulations implementing its 2008 ozone standards,” according to the dissent.

“The first subject of the majority opinion is EPA’s judgment about when future attainment deadlines begin running. The Clean Air Act says nothing about when EPA should start the clock,” according to the dissent.

The majority disagrees with EPA’s decision to run the deadlines from Dec. 31 rather than from July 20, 2012, when 2008 NAAQS designations became effective. “Exactly why the majority disagrees with EPA is hard to discern,” according to the dissent.

When Congress adopted the 1990 Amendments, EPA had already designated large areas of the country comprising half the population as non-attaining, that is, as having unacceptably high levels of ozone. “This history shows that EPA’s deadlines were never as firm or limited as the majority would like to believe,” according to the dissent.

On the issue of the transportation conformity requirements, “I disagree with the majority’s view that an objective observer, looking only at the statutory language, would conclude that EPA violated the Act,” Randolph said in the dissent.

“Notably absent from the majority opinion is any discussion of how exactly EPA and the States are expected to implement the majority’s decision,” Randolph said in the dissent.

NRDC versus EPA and Gina McCarthy, No. 12-1321, was argued before the appeals court on Nov. 22. The decision was issued on Dec. 23.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.