Monday, October 31, 2011

Natural Resources Defense Council v. U.S. EPA

Oct 28: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1105. On Petition for Review of a Final Rule of the Environmental Protection Agency. The Appeals Court explains that the case follows up a D.C. Circuit decision in Environmental Defense, Inc. v. EPA, 509 F.3d 553 (D.C. Cir. 2007), in which the Appeals Court reviewed U.S. EPA's promulgation of a final rule for "PM2.5 and PM10 Hot Spot Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards," 71 Fed. Reg. 12,468 (Mar. 10, 2006) (the 2006 Rule).
    The "conformity determinations" referred to in the rule's title are approvals needed under the Clean Air Act (CAA) for Federally funded transportation projects in an area that is designated "nonattainment" or "maintenance" with respect to the National Ambient Air Quality Standards (NAAQS) -- approvals required in order to assure that the project "conforms" to the applicable State Implementation Plan (SIP). See Environmental Defense, 509 F.3d at 555–58. "Hot spot" analysis means simply analysis of a project's localized impact. See 2006 Rule, 71 Fed. Reg. at 12,469/3.
    In a brief, 10-page opinion the Appeals Court said, "We start with a quick review of the statutory and regulatory provisions at issue in our remand in Environmental Defense, explain the nature of that remand, describe the EPA's response to the remand, and (finally) explain the adequacy of that response."
    Much of the case looks at the 1990 Congress amended CAA's conformity provisions to provide that [c]onformity to an implementation plan means— . . . "(B) that such activities will not— (i) cause or contribute to any new violation of any standard in any area; (ii) increase the frequency or severity of any existing violation of any standard in any area; or (iii) delay timely attainment of any standard or any required interim emission reductions or milestones in any area."

    The Appeals Court indicates that, "The pertinent passage of the 2006 Rule, however, appeared to disregard subsection (B)(iii). It provided that a new transportation project:

must not [1] cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or [2] increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied . . . if it is demonstrated that . . . no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project.

    ". . .Obviously the segments designated [1] and [2] neatly match (B)(i) and (B)(ii), and are paralleled in the sentence beginning 'This criterion is satisfied if . . . .' But if the statutory language 'any area' required application of the (B)(i) and (B)(ii) requirements at the local level, then the EPA's seeming failure to address B(iii), or to explain its not doing so, was arbitrary and capricious."

    In summation, the Appeals Court rules, ". . .given the EPA's clarification that (B)(iii) applies to local projects and its persuasive explanation of how the substance of the "delay" condition is met, we are satisfied that the 2010 Rule is not arbitrary, capricious, or inconsistent with law for the reasons raised in Environmental Defense. In particular, it is now clear that a project giving rise to the 'counterbalance' hypothetical we described in that case would not be deemed conforming." Accordingly, the petition of three environmental organizations is denied.

    Access the complete opinion (click here). [#Air, #CADC]

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