D.C. Circuit denies challenge over NAAQS non-attainment findings

The U.S. Court of Appeals for the District of Columbia Circuit has rejected a group of challenges to findings on National Ambient Air Quality Standards (NAAQS) non-attainment area designations that had been filed by several states as well as some industrial concerns and environmental groups.

The various parties had sought to overturn Environmental Protection Agency (EPA) determinations on whether certain geographic areas were in attainment or non-attainment with the NAAQS provision of the Clean Air Act.

“Virtually every petitioner argues that, for one reason or another, the EPA acted arbitrarily and capriciously in making its final NAAQS designations,” a three-judge panel said in an 87-page decision for the D.C. Circuit.

“But because the EPA complied with the Constitution, reasonably interpreted the Act’s critical terms and wholly satisfied—indeed, in most instances, surpassed—its obligation to engage in reasoned decision-making, we deny the consolidated petitions for review in their entirety,” the D.C. Circuit held.

The case, Mississippi Commission on Environmental Quality versus EPA, No. 12-1309, had been consolidated with more than a dozen other cases related to EPA NAAQS attainment findings. The case was argued before the D.C. Circuit panel in October 2014.

In addition to Mississippi, other states involved in the litigation included Delaware, Connecticut, Texas, Indiana and Utah. The Environmental Defense Fund represented some of the environmental groups in the litigation. There were also industrial petitioners involved in the litigation.

“The EPA began the odyssey resulting in these consolidated petitions nearly seven years ago,” according to the D.C. Circuit. “Along the way, it construed a variety of the Act’s provisions, promulgated regulations and issued informal guidance to assist in the collaborative area-designation effort between it and the states,” the court added.

Under the Act, the EPA must promulgate NAAQS, which set the maximum ambient, or outdoor, air concentrations for six pollutants that “may reasonably be anticipated to endanger public health or welfare,” the court noted.

Once it establishes a NAAQS, the EPA must designate each “area” in the United States as “attainment” or “nonattainment.” Alternatively, the EPA may designate an area as “unclassifiable” given existing data.

Generally speaking, the EPA designates an area that meets the relevant NAAQS as in attainment, while areas that exceed the NAAQS receive a non-attainment designation.

But even if an area’s ambient air concentration complies with the relevant NAAQS, the EPA nonetheless designates it as non-attainment if it “contributes” to a NAAQS violation in a “nearby area.”

The act, however, does not define the terms “contributes,” “nearby” or “area,” the court noted.

The three-judge panel was comprised of Chief Judge Garland; along with Circuit Judges Karen LeCraft Henderson and Sri Srinivasan.

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.