EPA Dinged for Loosening Ozone Deadlines

(CN) - Two less-stringent, state-friendly ozone regulations adopted by the Environmental Protection Agency have been overturned by the D.C. Circuit, which found the agency lacks the authority under the Clean Air Act to make such concessions.

The ruling comes after a decades-long tug-of-war between the EPA and environmental groups over the implementation of the Clean Air Act as it pertains to ground-level ozone. The court has already invalidated air-quality rules issued by the agency in 1997 and 2004 over extended deadlines for areas with the worst air quality in the nation.

This time, in a set of regulations issued in 2008, the EPA again sought to extend attainment deadlines. It also revoked transportation conformity requirements it set out in its 1997 regulations - prompting a challenge by the environmental watchdog group Natural Resources Defense Council.

The group challenged the new regulations as running contrary to the Clean Air Act and as an "arbitrary and capricious change from prior agency practice." The D.C. court agreed that the changes could not be squared with Congressional mandates.

"EPA identifies no statutory basis for deferring the trigger date to Dec. 31 of the designation year," Circuit Judge Sri Srinivasan wrote in a 34-page opinion. "To the contrary, all textual indications point to triggering commencement of the attainment periods on the designation date, rather than delaying the trigger date to some other date selected by the agency. Congress, as explained, prescribed the initial attainment deadlines under the 1990 amendments based on a trigger date set as the designation date - Nov. 15, 1990, the date on which initial designations and classifications took effect. For areas redesignated to nonattainment under existing air quality standards, Congress likewise required measuring the attainment deadlines based on a trigger date equaling the redesignation date."

Congress's decision to run the attainment periods starting from the designation date strongly suggests that the same trigger date should apply when adapting the rules to the revised air-quality standards, the court wrote.

Srinivasan noted that the EPA itself had previously acknowledged it lacked the statutory authority to extend the deadlines before doing so anyway.

"Because the substantive effect for the attainment deadlines is precisely the same, there is no reason to suppose that Congress (concededly) disallowed the latter approach but nevertheless allowed the former one," Srinivasan said. [Parentheses in opinion.]

And although the EPA had argued that extending the deadlines for troubled pollution areas would help achieve attainment in the end, the court said the Clean Air Act doesn't give the agency the authority to do so for any reason.

In his dissent, Senior Circuit Judge A. Raymond Randolph said the EPA's decision "is in harmony with Congress' intent."

"EPA's explanation (and its longstanding practice for areas with year-round ozone seasons) is more than sufficient," Randolph wrote.

"An agency 'need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better," Randolph continued, citing FCC v. Fox Television Stations, Inc. [Parentheses in dissent.]

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