Monday, January 7, 2013

Natural Resources Defense Council v. U.S. EPA

Jan 4: In the U.S. Court of Appeals, D.C. Circuit, Case No. 08-1250, consolidated with 09-1102 and 11-1430. On Petitions for Review of Final Rules of U.S. EPA. The four petitioners (Natural Resources Defense Council, Sierra Club, American Lung Association and Medical Advocates for Healthy Air) seek review of two final rules, promulgated pursuant to the Clean Air Act (CAA, Act), which govern implementation of the national ambient air quality standard (NAAQS) for "fine" particulate matter -- particulate matter (PM) having a diameter equal to or less than 2.5 micrometers (PM2.5). See Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007) (PM2.5 Implementation Rule); and Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008) (PM2.5 NSR Implementation Rule) (collectively, Final PM2.5 Implementation Rules).
    In particular, the Appeals Court explains and concludes, ". . .the petitioners challenge the decision of the Environmental Protection Agency (EPA) to promulgate the Final PM2.5 Implementation Rules pursuant to the general implementation provisions of Subpart 1 of Part D of Title I of the Act, 42 U.S.C. §§ 7501-7509a (Subpart 1), rather than the particulate-matter-specific provisions of Subpart 4 of Part D of Title I, id. §§ 7513-7513b (Subpart 4). We agree with the petitioners that EPA erred in applying the provisions of Subpart 1 rather than Subpart 4."
    The Appeals Court makes several conclusions saying: "First, EPA claims Subpart 4 'contains requirements that are expressly based upon the form of the PM10 NAAQS.' . . . This may be true but Subpart 4 also expressly governs implementation of the 'PM-10' standard. . . Thus, under Chevron step 1, EPA must implement all standards applicable to PM10 -- including its PM2.5 standards -- pursuant to Subpart 4."
    "Second, EPA urges that because in the 1987 PM NAAQS Revisions, it 'had considered whether to establish a separate NAAQS for fine particles, using PM2.5 as the indicator,' the Congress should have foreseen that it might do so later. . . It is not at all clear that the Congress should have so foreseen -- EPA cites a single, vague footnote to support its claim the Congress was on notice such a change was likely. . ."
    "EPA also argues that the Congress 'could have easily used the general term "particulate matter," rather than the
specific term "PM-10."' That the Congress could have done so does not negate the reality that the 'PM10' standard to which the Congress referred in fact included fine PM2.5 (both under the 1987 Rule and the 1990 statutory definition)."
    "In a final Chevron step 1 effort, EPA asserts that the legislative history makes the Congress's intent clear. Assuming legislative history could override the plain, unambiguous directive of Subpart 4, the history cited here is unconvincing. . . EPA additionally argues that its 'reading of the act is, at minimum, a "permissible" interpretation entitled to deference under Chevron step two.' . . . This argument is foreclosed, however, under Chevron step 1 because the statute is plain on its face."
    Finally, the Appeals Court concludes, "For the foregoing reasons, we grant the petitions for review of the Final Clean Air Fine Particle Implementation Rule, 72 Fed. Reg. 20,586 (Apr. 25, 2007), and the Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5), 73 Fed. Reg. 28,321 (May 16, 2008). We remand to EPA to repromulgate these rules pursuant to Subpart 4 consistent with this opinion." In a footnote, the Appeals Court says further, "
In light of our disposition, we need not address the petitioners' challenge to the presumptions in 40 C.F.R. § 51.1002(c)(3)-(4) that 2.5 volatile organic compounds and ammonia are not PM precursors as Subpart 4 expressly governs precursor presumptions. . . Moreover, we decline the petitioners' invitation to set a deadline for EPA upon remand or to retain jurisdiction pending such
action." The Appeals Court also cites previous decisions reminding that "mandamus affords a remedy for undue delay."
    Access the complete opinion (click here). [#Air, #CADC]
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