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Court Voids EPA NAAQS Rule:

On Friday, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the Environmental Protection Agency's rules implementing the new 8-hour National Ambient Air Quality Standard (NAAQS) for ozone (aka "smog"). The EPA adopted the 8-hour ozone NAAQS under the Clinton Administration. The controversial standard, upheld by the Supreme Court in Whitman v. American Trucking Associations, tightened the ozone standard from 0.12 parts per million (ppm) to 0.08 ppm, while lengthening the time period over which ozone measurements are averaged from one to eight hours.

In South Coast Air Quality Management District (SCAQMD) v. EPA, various organizations challenged the EPA's "Phase One" regulations implementing the new NAAQS as being either too lenient or too stringent. In the end, the D.C. circuit agreed with environmentalist organizations that portions of the EPA's plan were too lenient and constituted impermissible "backsliding" under the CAA. Specifically, the Court found the EPA lacked the discretion to adopt a more permissive timetable for compliance with a revised NAAQs than thatspecifically outlined for the ozone NAAQS in force when the CAA was last amended in 1990 and found that the EPA's decision to allow states to withdraw provisions of their state air pollution control plans.

The Washington Post covered the decision here.

Craig Oren (mail):
Thanks for posting this, Jonathan. It is too late at night for me to say anything really intelligent, but I will say that some parts of the partial invalidation don't surprise me. Although the opinion's author, Judge Judith Rogers, is a Democratic appointee, she is joined by two Republican appointees, Judge Karen LeCraft Henderson and Judge Janice Rogers Brown. (It just occurred to me that all three are of the female persuasion).

EPA now has quite a losing streak before the D.C. Circuit. It seems to me that this is not a Bush Administration phenomenon only. The Clinton EPA had similar problems, I believe. Somehow EPA seems to have evolved an approach that causes it trouble in the D.C. Circuit; perhaps the agency tries too hard to find discretion in narrowly-written statutes that are designed to curb agency discretion.
12.23.2006 10:20pm
Jake (Guest):
After reading the case (I was curious about the procedural posture), I think Adler actually softpedals the wackiness of the EPA's argument here. From a quick read, it looks like what happened was:
- Congress passed the Clean Air Act, giving the EPA lots of discretion
- Nothing happened
- Congress passed the CAA amendment in 1990 creating "part 2" of the CAA and removing most of the EPA's discretion as to (among other things) ozone, but allowing the EPA to modify the .12 ppm standard
- As part of this, there is a table that classifies violating sites as Marginal, Moderate, Serious, Severe, or Extreme depending on its ppm level
- The EPA tightened the standard to .08
- A site with a level of (say) .10 will no longer appear on the classifying table

Since there are sites that don't appear on the table, the EPA says that the sensible thing to do is scrap the entirety of Part 2 and go back to Part 1, where the EPA has all sorts of nifty discretion that the mean old Congresscritters took away from them in 1990.

Am I missing something here? Is this really a plausible argument in the area of agency law?
12.24.2006 12:05pm
Eli Rabett (www):
Minor niggle, tropospheric ozone is not smog, it is a precursor to smog. You need to mix with sunlight and volatile organic molecules (cooking helps).
12.25.2006 11:14am