EPA Must Have A Rationale to Survive Arbitrary and Capricious Review

Foley Hoag LLP - Environmental Law
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Foley Hoag LLP - Environmental Law

Last week, the 3rd Circuit Court of Appeals vacated EPA’s approval of Pennsylvania’s SIP for attaining the 2008 NAAQS for NOx.  Specifically, the Court found that EPA’s approval was arbitrary and capricious with respect to three separate, but related, provisions of the SIP.  The flawed provisions were:

  • The NOx standard for power plants utilizing selective catalytic reduction was set at 0.12 pounds/MMBtu.
  • This standard only applied at operating temperatures above 600 degrees F.
  • The SIP did not require that power plants maintain records demonstrating the operating temperature.

Sierra Club identified a number of flaws with these provisions.  However, they really all boiled down to the fact that judicial deference to agency expertise does not permit the agency to operate on the principle of ipse dixit.  Simply put, there’s a difference between a court’s review of an agency’s exercise of its expert scientific and technical judgment as documented in the administrative record and a court’s review of an agency’s statement that it made an expert scientific and technical judgment, when the administrative record is bare of any discussion by the agency regarding how it applied its expert judgment to facts in the record.

In fairness, I have to acknowledge that the use of ipse dixit isn’t new to this administration; I think it’s endemic to bureaucracies.  On the other hand, it’s pretty clear that use of ipse dixit has increased geometrically in this administration.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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