Court rules EPAs ozone, particulates limits unconstitutional

Pam Boschee

News Editor

On May 14, the American Trucking Associations left from a federal appeals court having blocked implementation of the National Ambient Air Quality Standards (NAAQS)-and having called into question the Environmental Protection Agency`s (EPA) authority in rulemaking.

Adopted two years ago, NAAQS-regulating coarse (PM-10) and fine (PM-2.5) particulate matter and ozone (smog)-have faced an onslaught of legal challenges from more than 30 groups attempting to overturn them. Opponents argued the regulations lacked a solid scientific basis and were too costly.

Setting what may prove to be a far-reaching precedent, a panel of three judges of the U.S. Circuit Court of Appeals for the District of Columbia ruled 2 to 1 that EPA interpreted sections of the Clean Air Act (CAA) “so loosely as to render them unconstitutional delegations of legislative power.” The court continued, “Although the factors EPA uses in determining the degree of public health concern associated with different levels of ozone and PM are reasonable, EPA appears to have articulated no `intelligible principle` to channel its application of these factors; nor is one apparent from the statute.”

The court did the following:

– remanded the eight-hour ozone and PM-2.5 standards back to EPA, instructing it to develop a constitutional construction of the law or, if EPA is unable to do so, it must report that conclusion to Congress;

– vacated the PM-10 standard. The court cited, “EPA`s choice of PM10 as the indicator for coarse particulate matter was arbitrary and capricious.”

In what may be the most important part of the court`s opinion, it referred to the “nondelegation doctrine” in its decision. This doctrine holds that certain issues are too important for Congress to delegate to administrative agencies. Tony Sullivan, environmental attorney at Barnes and Thornburg, Indianapolis, explained that according to the U.S. Constitution, governing is to be done by Congress, not by agencies such as EPA. Congress may delegate rulemaking to an agency, but the agency must then be precise in its interpretation of its limits of authority.

By citing EPA for acting unconstitutionally, the court indicated EPA had not been delegated the power that it exercised in its rulemaking, said Sullivan.

He said, “Agencies usually get a lot of deference in implementation of laws. In this case, the court said `you went too far.` The deference given to EPA is not as great as EPA would like it to be.”

The court expressed concern about EPA`s derivation of standards. Sullivan said, “There`s a lot of factual data and modeling that calls into question EPA`s assumptions.”

David Flannery, legal counsel for the Midwest Ozone Group (MOG)-a coalition of 30 electric utilities, coal and petroleum companies-concurred with this view. He said, “We have been concerned about the EPA adopting that standard (ozone) almost as though it was pulling a number out of the air. EPA was almost using a bootstrap standard in the eight-hour ozone standard.”

Flannery said MOG believes the court was correct in remanding the ozone standard. He said, “The defect was so significant as to be a constitutional defect. We have been making those same points to EPA all along and hoped it would listen earlier and hope that it will now listen to the appellate court.”

Remanding of the ozone standard may result in a domino effect, toppling not only NAAQS, but also other regulations that have ozone limits at their core.

In late May, the same appellate court (with two of the same judges involved in the earlier ozone and particulates decision) issued an order suspending the NOx SIP filing deadline until the court could rule on the merits of challenges to EPA`s rule. The SIP rule would have required 22 eastern states and the District of Columbia to reduce NOx emissions by about 85 percent.

MOG filed a petition with this court on June 2 requesting the court review EPA`s latest ozone related rulemakings under section 126 of the CAA. On May 25, EPA published its final action in response to the petitions filed by eight northeast states in August 1997 asserting that sources of NOx located in the Midwest and Southeast were significant contributors to their increased levels of ozone. EPA`s approval of many of these petitions was based on the agency`s now remanded eight-hour ozone standard.

Flannery said, “EPA`s rulings on the section 126 petitions must yield because they are based on the eight-hour standard. The relief the states are entitled to would be greatly reduced.”

EPA issued a statement on May 14, which included, “EPA is currently reviewing all options to preserve these standards, but intends to recommend an appeal to the Department of Justice. If the courts fail to uphold these protective standards, Congress must ensure that these protections are preserved for the American people and EPA stands ready to work with them.”

Sullivan said what this might all mean in terms of EPA`s future authority in rulemaking “may depend on who the judges are,” but he thinks “EPA may have been made more cautious about choosing what is right without adequate analysis.”

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