Monday, October 31, 2011
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  cause or contribute to any new localized CO, PM10, and/or PM2.5 violations or  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  and  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.