DC Circuit Strikes Down EPA Smog Deregulation Rule

By Joseph Fawbush, Esq. on October 10, 2019

Under the Clean Air Act, the Environmental Protection Agency is tasked with regulating the air quality standards for smog (ozone). But because air pollutants – and I'm not breaking any news here – travel with the wind, the Clean Air Act also has a “good neighbor" provision that prevents upwind states from emitting pollutants that affect the air quality of downwind states.

EPA Rules Did Not Require Upwind States to Comply

In 2008, the EPA issued the 2008 national ambient air quality standards (NAAQS) for states to comply with by 2017. Here's where it takes a turn. In 2016, the EPA updated the Cross State Air Pollution Rule, which contained no deadline for upwind states to eliminate their contributions to downwind states who were not meeting NAAQS. In 2018, it then issued the Close-Out Rule, in which the EPA claimed to conclusively decide the issue in finding that there was no need to set deadlines or obligations for upwind states, since everyone would be in compliance by 2023 anyway. It could not, it claimed, find cost-effective ways to implement any new regulations before the problem would go away on its own.

The next “attainment" deadline for downwind states to meet air quality ozone standards is 2021. You might have noted that this is two years prior to when the EPA expects upwind states to be in compliance.

In summary, downwind states were required to meet NAAQS regarding ozone, but upwind states did not need to take action. This could disproportionately place the burden on downwind states to improve air quality. Combined, the rules essentially rendered Good Neighbor obligations meaningless.

DC Circuit Agrees Rules Are Incompatible With Clean Air Act

In Wisconsin v. EPA, decided September 13, the D.C. Circuit Court of Appeals held in a per curiam opinion that the EPA's Updated Rule is inconsistent with the Clean Air Act, since the Clean Air Act set deadlines under which states must meet the NAAQS.

In what was essentially a foregone conclusion based on Wisconsin, the D.C. Circuit Court of Appeals, in a grant of a petition for review, similarly held that the Close-Out Rule was incompatible with the statutory requirements of the Clean Air Act. It therefore vacated the Close-Out Rule on October 1.

The EPA is considering appealing the decision en banc and has until October 28 to do so. It may also appeal to the Supreme Court. Meanwhile, the EPA must figure out how to require upwind states to reduce ozone emissions by 2021.

Interestingly, both the Cross State Air Pollution Rule and the Close-Out Rule involve ozone standards involving .075 parts per million. In 2015, that was further reduced to .070 parts per million.

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