Federal Appeals Court Upholds Standards On Particulates From Transportation Projects

By Andrew Childers

A federal appeals court Oct. 28 upheld an Environmental Protection Agency rule detailing criteria that states and local governments must use to determine whether new transportation projects create “hot spots” of elevated particulate matter (Natural Resources Defense Council v. EPA, D.C. Cir., No. 10-1105, 10/28/11).

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected environmental groups' contention that new transportation projects be required to address existing particulate matter pollution problems in addition to offsetting their own emissions.

At issue is EPA's transportation conformity rule, which requires state and local transportation agencies to ensure that federally supported highway and transit projects are consistent with or conform to state implementation plans to control air pollution.

The rule, issued in March 2010, is intended to prevent creation of localized pockets of particulate matter pollution, known as “hot spots” (75 Fed. Reg. 14,260; 56 DEN A-1, 3/25/10).

The rule addressed a 2007 decision by the D.C. Circuit requiring EPA to ensure that transportation projects do not create pockets of particulate pollution (Environmental Defense v. EPA, D.C. Cir., No. 06-1164, 12/11/07).

The Natural Resources Defense Council, Sierra Club, and East Yard Communities for Environmental Justice sued EPA, arguing the rule was not sufficient to ensure that the Clean Air Act's requirement that new transportation projects do not increase emissions that would delay states' efforts to attain the national ambient air quality standards for particulate matter.

Projects Cannot Postpone Attainment

Transportation conformity requires state and local transportation planners to model pollution concentrations of proposed projects compared to particulate matter levels if the project were not built. Projects that would delay states' attainment of the particulate matter standards or aggravate existing pollution problems would not be considered conforming.

“Petitioners have failed to provide any hypothetical or actual example of a project that could delay attainment without causing a ‘new' or ‘more severe' violation under these definitions,” Senior Circuit Judge Stephen F. Williams said in the opinion.

During oral arguments Sept. 12, Robert Yuhnke, an attorney for the environmental groups, argued the Clean Air Act requires new highway construction in areas not meeting air quality standards for particulate pollution should alleviate existing pollution problems in addition to mitigating its own pollution (177 DEN A-5, 9/13/11).

The judges rejected that argument as not being supported by either the statute or the legislative history of the Clean Air Act.

Local Pollution Not Addressed

NRDC attorney Adriano Martinez told BNA Oct. 28 that EPA relies on regional-scale emissions models when it determines whether new projects would contribute to or exacerbate existing pollution problems for the purposes of transportation conformity.

That scale of modeling “doesn't take into account the localized level of pollutants,” particularly in communities near new highways, and those communities will continue to be exposed to elevated particulate matter concentrations under the judges' ruling, he said.

Martinez said the environmental groups had not yet discussed whether they would seek an en banc hearing before the court.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit in Natural Resources Defense Council v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-8n3p2n .