Foley Hoag LLP - Environmental Law

Last Friday, the D.C. Circuit Court of Appeals ruled that EPA violated the Clean Air Act in failing to impose deadlines on upwind states violating the CAA’s Good Neighbor provisions. The Court concluded that, where downwind states face significant consequences in not meeting statutory deadlines to attain National Ambient Air Quality Standards, but don’t control their own fate because upwind states are contributing significantly to the downwind states’ nonattainment, the statute requires that upwind states must comply with their Good Neighbor obligations on the same schedule.

First, the Court summarized its prior decision on this subject, in North Carolina v. EPA, which addressed EPA’s prior interstate rule:

EPA ignored its statutory mandate to promulgate CAIR consistent with the provisions in Title I mandating compliance deadlines for downwind states in 2010. … We explained that EPA needed to “harmonize” the “Phase Two deadline for upwind contributors to eliminate their significant contribution with the attainment deadlines for downwind areas.” Otherwise, downwind areas would need to attain the NAAQS “without the elimination of upwind states’ significant contribution.

The Court also concluded that EPA’s interpretation exceeded its discretion under Chevron:

The Rule’s open-ended compliance timeframe exceeds the bounds of EPA’s statutory authority by allowing upwind States to continue their significant contributions to downwind nonattainment well past the deadline for downwind areas to comply with the NAAQS.

The only other aspect of the decision worth note is its discussion of scientific uncertainty. The agency justified not imposing a deadline on the uncertainty surrounding sources outside the electric generation sector. Ever since Ethyl Corp. v. EPA, courts have concluded that EPA has authority to regulate, even where the science underlying its regulations is uncertain. Here, EPA took the position that the uncertainty justified not imposing a deadline.

The Court wasn’t having it. Uncertainty can justify regulation, but it can’t justify not regulating.

The statutes and common sense demand regulatory action to prevent harm, even if the regulator is less than certain. … It is only when “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment” that it can excuse compliance with a statutory mandate.

Makes sense to me.

Photo Credit: www.thequotes.in

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