EPA Rule Dispute Is Still Untimely, Court Rules

CHICAGO (CN) - The 7th Circuit rejected a challenge to Wisconsin's implementation of Environmental Protection Agency permitting regulations that some groups claimed would actually increase air pollution.

In 2002, the EPA changed permitting rules for polluters such as power and industrial plants. Several environmental groups alleged that the new rules violated the Clean Air Act because they could cause air quality to deteriorate in parts of the country that have yet to attain the required standard.

Several changes had worried environmental groups. Most significantly, the regulations chose to look at a plant's overall pollution, rather than individual machines. This could have allowed plant owners to use pollution reductions that they would have made anyway to offset increases elsewhere without needing a permit.

The groups suffered defeat in 2005 when the D.C. Circuit found the rules were rational and consistent with the act. But the court deferred ruling on the accuracy of EPA's models, which predicted neutral or beneficial effects on aggregate emissions, saying it would need data to make such a determination.

After Wisconsin adopted the regulations, the Natural Resources Defense Council and the Sierra Club brought the first challenge to a specific state plan, bringing the same arguments as in the 2005 case.

Finding no hard data to support the group's challenge, the 7th Circuit upheld the regulations on Thursday.

"If the EPA is in the same position as 2002 (and 2005), so are petitioners," Chief Judge Frank Easterbrook wrote for the court. "The lineup is still: models on one side, lawyers' talk on the other. As in 2002 and 2005, the models supply substantial evidence for the EPA's decision and show that it is neither arbitrary nor capricious."

Though only about half of the states have changed their implementation plans to track the 2002 revisions, neither environmental groups nor the EPA knew what effects the changes have had on emissions. No published studies on the subject are available.

"The experience in the states that have implemented the 2002 revisions may vindicated the EPA or may refute it; as long as the judiciary remains behind the veil of ignorance, it must accept the EPA's projections," the three-judge panel held.

Three elements of the permitting process most worried environmentalists.

"An agency that clings to predictions rather than performing readily available tests may run into trouble. ... At some point, preferring predictions over facts is no longer rational," Easterbrook cautioned. "But challengers who fail to put data in the administrative record - likely because this record was assembled before data from other states became available - cannot complain that the agency continues to rely on models."

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