Wednesday, January 23, 2013
Sierra Club v. U.S. EPA
Jan 22: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1413. On Petition for Review of Final Actions of the United States Environmental Protection Agency.
The Appeals Court explains that in October 2010, U.S. EPA issued a final rule establishing regulations for particulate matter less than 2.5 micrometers (PM2.5) under § 166 of the Clean Air Act (the Act), 42 U.S.C. § 7476. See Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5) -- Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC), 75 Fed. Reg. 64,864 (Oct. 20, 2010). In this rule, the EPA established Significant Impact Levels (SILs) and a Significant Monitoring Concentration (SMC) for PM2.5, screening tools the EPA uses to determine whether a new source may be exempted from certain requirements under § 165 of the Act, 42 U.S.C. § 7475. 75 Fed. Reg. at 64,890 91, 64,895. Petitioner Sierra Club seeks review of this regulation.
After the Sierra Club filed its petition, the EPA acknowledged that portions of the rule establishing SILs did not reflect its intent in promulgating the SILs, and now requests that we vacate and remand some (but not all) parts of its PM2.5 SIL regulations. The Appeals Court indicated that, "Notwithstanding the EPA's concession, the Sierra Club maintains that the EPA lacks authority to establish SILs and requests that we rule accordingly. The Intervenor, Utility Air Regulatory Group (UARG), on the other hand, urges us to uphold the SIL provisions EPA established, or alternatively, to remand the SIL provisions without ordering that they be vacated."
The Appeals Court said, "Although the EPA conceded that it needs to revise some of the SIL provisions, it continues to assert that the portions of its rule establishing the SMC were valid. For the reasons stated below, we accept the EPA's concession on the SILs, and vacate and remand some portions of the EPA's rule establishing SILs. We further conclude that the EPA exceeded its authority in establishing the SMC, and grant the Sierra Club's petition as to those portions of the EPA's rule."
The Appeals Court explains further that, "After the Sierra Club filed its petition, the EPA acknowledged that portions of the rule establishing SILs did not reflect its intent in promulgating the SILs, and now requests that we vacate and remand some (but not all) parts of its PM2.5 SIL regulations. Notwithstanding the EPA's concession, the Sierra Club maintains that the EPA lacks authority to establish SILs and requests that we rule accordingly. . .
"Despite the EPA's concession, the Sierra Club asserts that vacatur and remand, while warranted, does not fully resolve its challenge, and asks that we determine whether the EPA has authority to promulgate SILs. We disagree with the Sierra Club that it is necessary to decide the EPA's authority to promulgate SILs at this point. To do so would require that we answer a question not prudentially ripe for determination. On remand the EPA may promulgate regulations that do not include SILs or do include SILs that do not allow the construction or modification of a source to evade the requirements of the Act as do the SILs in the current rule. In such an event, we would not need to address the universal disallowance of all de minimis authority. If the EPA promulgates new SIL provisions for PM2.5 and those provisions are challenged, we can then consider the lawfulness of those SIL provisions."
Further, the Appeals Court rules, "We are not now ruling on the methodology the EPA used to determine the SILs. Instead, we are vacating and remanding §§ 51.166(k)(2) and 52.21(k)(2) based on the EPA's lack of authority to exempt sources from the requirements of the Act. Therefore, vacatur and remand of § 51.165(b)(2) is not necessary at this point. Accordingly, we vacate and remand the portions of the EPA's rule regarding SILs, with the exception of those portions codified in 40 C.F.R. § 51.165(b)(2). . .
"We disagree with the EPA that the Sierra Club's petition is time-barred, and we agree with the Sierra Club that the EPA did not have de minimis authority to promulgate the SMC because we hold Congress was "extraordinarily rigid" in mandating preconstruction air quality monitoring. . ."
Finally, the Appeals Court concludes, ". . .we vacate and remand to the agency for further consideration the portions of the EPA's rule addressing SILs, except for the parts of its rule codifying PM2.5 SILs in 40 C.F.R. § 51.165(b)(2). We grant the Sierra Club's petition as to the parts of the EPA's rule establishing a PM2.5 SMC, and vacate them because these parts of the rule exceed the EPA's statutory authority. See 42 U.S.C. § 7607(d)(9)(3)."
Access the complete opinion (click here). [#Air, #CADC]
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