Court will not order EPA to draft secondary acid rain rule

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit ruled against a request by the Center for Biological Diversity and other groups that sought to force the Environmental Protection Agency (EPA) to issue a “secondary” rule connected with acid rain, according to GenerationHub.

The EPA had decided in 2012, after “an exhaustive rulemaking proceeding,” that it needed further studies before it could set a new, joint “secondary” national ambient air quality standard (NAAQS) for oxides of nitrogen and oxides of sulfur, and other related compounds found in the ambient air and considered precursors of acid deposits, the court noted.


In a 23-page decision, the D.C. Circuit panel held that EPA, and not federal judges, should make judgment calls on complex scientific questions.

While EPA elected not to launch new regulation sought by the plaintiffs at this time, the agency has set up a new data collection program that could provide basis for future regulation, the court said. For EPA to draft a new standard now without adequate data would be arbitrary and capricious, the court held. 

“As we have said, all parties agree that the two secondary standards for NO2 and SO2 are not adequate to protect against adverse effects on water bodies from acid rain,” the D.C. Circuit said. The petitioners in the case said this clearly shows that EPA should issue a new standard.

But EPA and the court said the situation isn’t so simple. “Even if we had no obligation to defer to EPA’s interpretation of the Clean Air Act — but of course we do ” EPA has by far the better of the argument,” the court said.

EPA found that available information was insufficient to permit a reasoned judgment about whether any proposed standard would able to protect the public welfare. “It is ridiculous to suppose that the Clean Air Act required EPA to promulgate a secondary standard that would immediately violate the Act. Yet that is where petitioners’ arguments lead,” the court said.

The petitioners argued that EPA was wrong in saying it lacked sufficient scientific data to take the next regulatory step. The petitioners also said, even if EPA was correct, it failed to provide an adequate explanation.

“Decades of decisions in this court stand in the way of these arguments,” the D.C. Circuit said in its decision.

Over the years the appeals court has repeatedly cautioned against having judges substitute their judgment for that of agency experts when it comes to a choice between rational scientific alternatives, the D.C. Circuit panel said.

When it comes to secondary NAAQS, EPA had concluded that “given the current high degree of uncertainties and the large complexities inherent in quantifying the elements of” the Aquatic Acidification Index, it had “no reasoned way to choose” a nationwide Acid Neutralizing Capacity or to apply the Index to each of the eco-regions throughout the country, the court said.

“In light of the deference due EPA’s scientific judgment, it is clear that its judgment must be sustained here,” the D.C. Circuit held.

Center for Biological Diversity, et al versus EPA No. 12-1238 was argued Oct. 10, 2013. The American Petroleum Institute (API) and Utility Air Regulatory Group (UARG) intervened in the case. 

The three-member panel was comprised of Circuit Judge Brett Kavanaugh, and Senior Circuit Judges David Sentelle and Randolph. Raymond Randolph wrote the opinion.

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Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 22 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants.

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