The Clean Air Act is Really Complicated; Can’t We Call the Whole Thing Off?

Last week, the Court of Appeals for the District of Columbia struck down EPA’s rule implementing the 2008 ozone standards.  My primary take-away?  The structure of the Clean Air Act is so dense and so complicated that it gives me a headache, and I do like to think I’m something of an expert.  Those of us who believe in government regulation need to be honest and admit that there’s a reason why some people become Libertarians.  

At a more substantive level, and trying to cut through the regulatory thicket, here are the important messages:

  • Areas in non-attainment may only satisfy their obligations to demonstrate progress towards attainment with reductions within the specific non-attainment area at issue.
  • Where areas have been in non-attainment under prior ozone standards, the anti-backsliding provisions of the CAA preclude implementation rules for newer standards from abrogating any requirements that would have any bearing on improvements in air quality.
  • Even for areas that appear to have reached attainment with newer, more stringent NAAQS, anti-backsliding provisions prevent relief from prior requirements if the areas have not formally been redesignated as being in attainment.

As Hillel might have said, this is the whole of ozone implementation.  The rest is commentary.  Go forth and study.

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