Extension of 2008 Ozone Compliance Deadline Unlawful, D.C. Circuit Tells EPA

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By Andrew Childers

Dec. 23 — The Environmental Protection Agency unlawfully extended the deadline for states to comply with revised air quality standards for ozone issued in 2008, federal appellate judges ruled Dec. 23.

“Even assuming EPA could adequately justify choosing a trigger date other than the designation date, it has failed to do so here,” the U.S. Court of Appeals for the District of Columbia Circuit said in a 2-1 decision.

That decision means states will have six months less to demonstrate compliance with the national ambient air quality standards (NAAQS) for ozone set in 2008.

“We saw what EPA would do given a free hand,” Seth Johnson, the Earthjustice attorney who argued the case on behalf of the Natural Resources Defense Council, told Bloomberg BNA Dec. 23. “It delays and prevaricates and nothing gets cleaned up. This opinion reminds EPA, not for the first time, it can’t do that.”

State representatives couldn't be reached for comment.

The court also overturned the EPA's decision to revoke the requirement for some states to maintain transportation conformity plans for the 1997 ozone standards, which were superseded by the standards set in 2008.

Judge Sri Srinivasan wrote the opinion of the court, which was joined by Judge David Tatel. Judge A. Raymond Randolph dissented.

The judges heard oral argument in November 2013.

No Authority for Extension

The Natural Resources Defense Council had challenged the EPA's May 21, 2012, rule to implement the national ambient air quality standards for ozone, which were revised to 0.075 parts per million in 2008 (77 Fed. Reg. 30,160).

The EPA rule set the compliance period beginning Dec. 31, 2012, but the NRDC argued the compliance period should have begun July 20, 2012, when nonattainment designations took effect. That would mean states designated as marginal nonattainment areas would have to demonstrate compliance by July 20, 2015. The EPA's extended deadline would have given states until Dec. 31, 2015, to comply with the standards.

Because the ozone season ends in June, that effectively gave states an additional year to comply, the environmental group had argued.

“What EPA did was basically give a lot of areas an extra year to come into attainment,” Johnson said. “That’s a year more of people missing work, people missing school, premature deaths.”

Srinivasan said the EPA couldn't identify any statutory authority for extending that deadline.

“To the contrary, all textual indications point to triggering commencement of the attainment periods on the designation date, rather than delaying the trigger date to some other date selected by the agency,” he said in the court's opinion.

The EPA, itself, had concluded it lacked the authority to extend the compliance deadlines beyond what is prescribed in the Clean Air Act when it previously revised the ozone standards in 1997, the court said.

“EPA’s ozone-season explanation lacks any grounding in the statute,” the court said. “The agency itself previously recognized as much. When EPA declined to extend the attainment deadlines to ‘November or December' of the attainment year in its implementation of the 1997 NAAQS, the reason cited in support of the proposed extension was to enable ‘areas [to] use the ozone season air quality data from the attainment year to demonstrate attainment'—precisely the same explanation now invoked by the agency.”

Changes Cause ‘Disarray.'

In his dissent, Randolph said the EPA shouldn't be bound by that prior interpretation in the 2008 rule. He said nothing in the Clean Air Act bars the agency from extending the compliance period.

“The Clean Air Act says nothing about when EPA should start the clock after the agency has issued new, stricter National Ambient Air Quality Standards (NAAQS) for ozone,” Randolph said.

Randolph said revising the compliance deadlines retroactively would cause “disarray” for states that have already mapped out compliance strategies.

“These and other problems are bound to arise as a result of what I consider a mistake in judicial analysis,” he said.

Transportation Conformity Retained

The court also vacated the portion of the EPA's rule that revoked the requirement for some states to maintain transportation conformity plans for the 1997 ozone standards, which were superseded by the standards set in 2008. The EPA's implementation rule revoked the requirement for areas that had been designated as not in attainment of the 1997 standards but in attainment of the more stringent 2008 standards to maintain transportation conformity plans for the revoked 1997 standard. The agency has argued that complying with the more stringent 2008 standard automatically meant those areas were also in attainment with the 1997 standard.

“EPA does not deny the mandatory nature of the conformity requirements for all nonattainment and maintenance areas,” the court said. “Nor does EPA dispute that all nonattainment designations and maintenance requirements remain in place for the 1997 NAAQS. Rather, EPA seeks to turn off the conformity requirements—and those requirements alone—for areas that remain in nonattainment or maintenance status under the 1997 NAAQS. The statute forbids that result.”

Transportation conformity is a Clean Air Act requirement that states consider the impacts of transportation decisions in places where air quality doesn't meet national standards or hasn't met them in the past.

Johnson said approximately 70 areas nationwide would have been exempted from the requirement to consider ozone implications of transportation projects under the EPA's rule.

“These orphan areas are going to be subject to transportation conformity,” he said. “That’s an important control for preventing ozone problems before they happen.”

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl in Washington at lpearl@bna.com

The opinion is available at http://www.bloomberglaw.com/public/document/NRDC_v_EPA_et_al_Docket_No_1201321_DC_Cir_Jul_20_2012_Court_Docke.

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