EPA Ducks Claims Over Backsliding Valley Air

     SAN FRANCISCO (CN) – A federal judge dismissed a challenge to ozone-pollution reporting in California’s Central Valley because the Environmental Protection Agency has already cracked down, albeit belatedly.



     Medical Advocates for Healthy Air and Sierra Club sued the EPA in July 2011 for missing the deadline to determine whether the San Joaquin Valley met the National Ambient Air Quality Standard for ozone. The valley lies within the San Joaquin Valley Unified Air Pollution Control District, which intervened for the EPA in the case.
     As the case for an injunction was pending in December 2011, the EPA belatedly made the sought-after determination and concluded that the San Joaquin Valley was in violation of the Clean Air Act for not meeting national ozone standards.
     This determination came more than six months after a deadline set by the D.C. Circuit to address a more relaxed ozone standard that the EPA adopted in 2004.
     Previously, the agency measured ozone by monitoring averaged levels over a one-hour period. Areas that failed to attain the 0.12 ppm standard were designated as nonattainment areas.
     Under this standard, the San Joaquin Valley fell into the worst possible category, “extreme.”
     Though the EPA is authorized to relax national air quality standards, it is supposed to prevent “backsliding” by ensuring that nonattainment-designated areas do not face less stringent controls.
     The 2004 change would replace the one-hour test with a slightly less stringent test using an eight-hour average concentration of 0.08 ppm. The plan did not include contingency measures or fees to prevent backsliding.
     But since the December 2011 determination found that the valley did not attain the one-hour ozone standard, the EPA claimed that the challenge was moot.
     The environmental groups countered that the determination was insufficient since it did not prevent against backsliding with additional planning and other requirements, as required by Section 179 of the Clean Air Act.
     On Monday, U.S. District Judge Susan Illston dismissed the case for lack of jurisdiction. Though the environmentalists may have a case for the anti-backsliding requirements, they should have brought those claims to the 9th Circuit.
     “The jurisdiction of federal courts depends on the existence of a ‘case or controversy’ under Article III of the Constitution,” Illston wrote.
     “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision,'” citing Lewis v Continental Bank Corp.
     “The CAA [Clean Air Act] vests jurisdiction for claims challenging the substance of an EPA ruling with nationwide impact in the Court of Appeals for the District of Columbia,” Illston wrote. “For claims challenging the substance of an EPA ruling that is ‘locally or regionally applicable,’ the CAA vests jurisdiction in the courts of appeal for the appropriate circuit.”
     “For claims ‘against the administrator where there is alleged a failure of the administrator to perform to perform any act or duty under this chapter which is not discretionary,’ the CAA provides for a citizen suit in the district courts.”
     “The court concludes that this case is moot because plaintiffs brought suit to compel EPA to make a determination regarding whether the valley has failed to attain the one-hour ozone standard, and EPA has now issued a final rule and nonattainment decision,” she added. “The court further concludes that to the extent the plaintiffs argue that EPA was required to make its nonattainment determination pursuant to Section 179, that challenge goes to the substance of EPA’s final rule, and such a challenge is properly brought in the Ninth Circuit.”

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