On January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in Natural Resources Defense Council v. EPA, No. 08-1250, that the U.S. Environmental Protection Agency (EPA) had improperly promulgated two rules implementing standards for fine particulate matter (PM2.5) under the Clean Air Act (CAA). Because of this ruling, the EPA will have to reissue the challenged rules under different provisions of the CAA, which is likely to result in the imposition of more stringent requirements on the regulated community. In addition, the court discussed when statements made in the preamble to a rulemaking can be considered “final actions” that are subject to appeal.
Background -
Section 109 of the CAA requires the EPA to establish primary national ambient air quality standards (or NAAQS) for each air pollutant for which the EPA has established air quality criteria under Section 108. These standards must be set at a level that is protective of “the public health.” Once NAAQS have been established for a pollutant, the CAA requires the EPA to undertake a thorough review of these standards every five years to ensure they continue to be adequately protective. The EPA may also draft rules providing the states with direction on how to implement these standards. States are then required, in turn, to develop plans for the implementation and enforcement of the NAAQS, also known as State Implementation Plans or SIPs. Because these SIPs must be approved by the EPA, the agency’s implementation rules are an important step in the regulatory process.
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