EPA Not Mandated to Update Clean Air Rules

SAN FRANCISCO - (CN) The Clean Air Act does not require the Environmental Protection Agency to revise its air quality protection rules just because national standards for ozone have changed, a federal judge ruled.

WildEarth Guardians, Sierra Club, and Midwest Environmental Defense filed a series of actions under the Clean Air Act's (CAA) citizen suit provision to force Lisa Jackson, Administrator of the EPA, to review and modify the way it regulates air pollution from ozone.

The environmental groups claimed that the agency failed to prevent air quality from becoming worse, arguing that the CAA requires it to review regulations and update them when needed.

The EPA disagreed, filing a motion to dismiss these charges on the basis that CAA statues allow it more flexibility in deciding when and how it should revise ozone air pollution standards.

"EPA argues that it previously complied with the statute when it promulgated prevention of significant deterioration ("PSD") regulations for ozone, and that the statute does not create a mandatory duty to update or revise the PSD rules simply because the national ambient air quality standards ("NAAQS") for ozone have been revised subsequently," wrote U.S. District Judge Yvonne Gonzalez Rogers.

"As a consequence, EPA argues that there is no mandatory duty at issue and the Court is without subject matter jurisdiction under the citizen suit provisions," Rogers continued.

In her 19-page ruling, Rogers analyzed the different changes to the CCA how it affects the current dispute.

In 1970, Congress passed a series of changes to the original Clean Air Act of 1963, the first federal act passed to further the goal of reaching and maintaining a specific standard of air quality.

These changes included the addition of new mandatory deadlines for meeting air pollution standards and the creation of the citizen suit provision, which allows groups like WildEarth and Sierra Club to force the EPA to honor those deadlines.

"Congress charged the EPA with setting national ambient air quality standards ("NAAQS") for certain specified pollutants based on criteria, and with an adequate margin of safety, to protect the public health and welfare from the adverse effects of those pollutants in ambient air," wrote Rogers in her ruling.

Additional changes to the CAA in 1977 introduced Prevention of Significant Deterioration, or PSD, programs, which required states to both meet certain air quality standards and make sure that air quality did not get worse.

Congress tasked the EPA with regulating pollutants by calculating how much a pollutant's concentration in the air could increase before it would negatively impact NAAQS. Rogers referred to these levels as a pollutant's "maximum allowable increases, or 'increments.'" The EPA also determined pollutants' de minimus thresholds, or concentration levels at which pollutants are not considered a threat to these air quality standards.

According to the ruling, the EPA set de minimus thresholds for ozone, but never calculated its maximum increase.

"The question facing the Court is whether the language of Section 166(a) of the Clean Air Act mandates that the EPA promulgate additional regulations for ozone in light of the revised NAAQS issued on March 27, 2008," Rogers wrote in her ruling.

Rogers stated that the Court could rely only on the wording in the CAA itself when analyzing the issue: "Where the language of the statute is plain, it is also where the inquiry should end: "the sole function of the courts is to enforce [the statute] according to its terms," assuming that an absurd interpretation does not result," she wrote, citing the ruling in Caminetti v. United States to support her conclusion.

Section 166(a) of the CAA contains two sentences about regulating pollutants. The first sentence sets requirements for regulating four specific pollutants, while the second sentence requires the EPA to study and issue regulations for pollutants added to NAAQS after 1977.

The environmental groups argued that the EPA must update its PSD rules for ozone because the EPA updated its ozone NAAQS in 2008.

The EPA disagreed on the basis that it was not creating NAAQS for a new pollutant, but was simply updating those they had previously issued for ozone.

Rogers noted that Congress's use of "promulgate" and "revision" in the pollutant regulation statute was ambiguous.

But when read in context of the entire CAA, she ruled that Congress used the words to distinguish between two different duties it was assiging to the EPA.

"Reading the Act as a whole, the Court can only conclude that Congress intended Section 166(a) to require an initial mandatory promulgation of regulations to prevent the significant deterioration of air quality for the four pollutants identified, and thereafter, a (single, initial) mandatory promulgation for other pollutants subsequently identified," Rogers wrote.

"It did not include a reference to the term "revision" in the second sentence and therefore did not create a continuing, mandatory duty to act. Because Congress did not specify that Section 166(a) applied to revisions of NAAQS, as it did in numerous other provisions in the Clean Air Act, the Court does not read such an obligation into Section 166(a)," the judge concluded.

The judge also shot down the environmentalists' claims that not forcing the EPA to change its PDS regulations would put the PDS regulations out of sync with the national air quality standards.

"Every change to a pollutant's NAAQS does not necessarily warrant a change to the pollutant's PSD regulations," wrote Rogers.

Rogers also found the plaintiff's argument that the EPA's past actions imply that the statue is ambiguous to be unpersuasive.

"The result of the Court's interpretation of Section 166(a) is that EPA is left with the authority to exercise its discretion to modify the PSD regulations, or not, in light of any revised NAAQS standard it has issued," wrote Rogers. "Whatever policy reasons might make review and revision of PSD regulations a good idea when a NAAQS is revised, do not render absurd the Court's construction." [...]

"Defendant's motion to dismiss as to WildEarth's First Claim for relief and Midwest's Second Claim for relief on grounds of lack of jurisdiction is granted," Rogers concluded.

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