Friday, August 15, 2008

Galveston-Houston Association For Smog Prevention v. U.S. EPA

Aug 13: In the U.S. Court of Appeals, Fifth Circuit, Case No. 06-61030. Petitioner Galveston-Houston Association for Smog Prevention (GHASP) sought a review of the U.S. EPA's final rulemaking action approving the Mid-Course Review State Implementation Plan (MCR SIP) submitted by the State of Texas for the Houston-Galveston-Brazoria Severe Ozone Nonattainment Area (HGB area). Texas submitted the MCR SIP to satisfy one of the enforceable commitments contained in a previously approved State Implementation Plan (SIP) for the HGB area. GHASP argues that: (1) EPA acted arbitrarily and capriciously in approving the MCR SIP because it did not demonstrate attainment of specified emissions reductions; (2) EPA acted arbitrarily and capriciously when it relied on "weight of evidence" analysis to excuse modeled nonattainment; and (3) by approving the MCR SIP, the EPA violated the non-interference or anti-backsliding provision of the Clean Air Act.

The Appeals Court denied the petition for review and also denied an award of attorneys’ fees to GHASP. In part, the Appeals Court said, "Because the definition of reasonable further progress is defined within the statute, the question of whether the MCR SIP violates Section 110(l) turns on the meaning of 'would interfere.' The statute itself does not define 'would interfere.' Because Congress has not directly spoken on this issue, under Chevron step two we will defer to the EPA’s interpretation unless it is arbitrary or capricious.

"GHASP contends that the EPA must show that results under the MCR SIP are better than results under the 2001 SIP to comply with Section 110(l). However, nothing in the plain language of Section 110 (l) supports this interpretation. The EPA and BCCA Appeal Group in its amicus brief, urge this court to adopt the interpretation of interference accepted by the Sixth Circuit in Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006), in which that court held that the EPA may approve a SIP revision 'unless the agency finds it will make air quality worse.' According to the EPA, under Section 110(l), the EPA’s approval of Texas’s MCR SIP does not constitute interference as long as the revisions to the SIP were properly substituted by new measures that would offset the effect of those measures removed from MCR SIP. Thus, changes to a SIP, either dropping measures or reducing measurement requirements, are not by themselves sufficient to prove interference. Rather, one must show that the substitute measures are not at least equivalent to the previous measures in achieving attainment. We find the EPA’s interpretation of Section 110(l) reasonable and thus refuse to substitute our judgment for that of the Agency’s."

Access the complete opinion (click here).

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