On Monday, the 9th Circuit Court of Appeals ruled that EPA does not have an obligation to amend PSD regulations for a criteria pollutant within two years of revising the National Ambient Air Quality Standard for that pollutant.
WildEarth Guardians had sued EPA under section 304(a)(2) of the Clean Air Act, which authorizes suits against the Administrator for a failure “to perform any act or duty … which is not discretionary….”
What was the basis for the alleged nondiscretionary duty? It was section 166(a) of the CAA:
(a) Hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides
In the case of the pollutants hydrocarbons, carbon monoxide, photochemical oxidants, and nitrogen oxides, the Administrator shall conduct a study and not later than two years after August 7, 1977, promulgate regulations to prevent the significant deterioration of air quality which would result from the emissions of such pollutants. In the case of pollutants for which national ambient air quality standards are promulgated after August 7, 1977, he shall promulgate such regulations not more than 2 years after the date of promulgation of such standards.
WildEarth Guardians read the second sentence to require new standards within two years of any revision to a NAAQS. EPA’s view was that the first two sentences have to be read together. The first sentence requires PSD regulations for criteria pollutants already established when section 166 was added to the CAA; the second sentence addresses new criteria pollutants added later, and requires only that PSD regulations be promulgated within two years after the pollutants are first listed.
The Court found both readings plausible, and tie goes to EPA. As the Court noted, in interpreting section 304(a)(2) of the CAA, the Court has required that the duty “be clear cut.”
We must be able to identify a “specific, unequivocal command” from the text of the statute at issue using traditional tools of statutory interpretation; it’s not enough that such a command could be teased out “from an amalgamation of disputed statutory provisions and legislative history.
Nice try by WildEarth Guardians, but this is clearly right. Courts really do have to be leery of finding nondiscretionary duties if they are going to avoid tying agencies in knots. Of course, EPA may never revise its ozone PSD regulations, but there are two responses to that issue. First, Congress can direct EPA to do so. Second, do we want EPA to update its regulations?
Heck yes, we want EPA to update PSD regs to match changes in NAAQS! Suppose the lowering of a NAAQS requires different modeling or more frequent monitoring of the same (or additional) sources in the same (or additional) locations to demonstrate compliance with the stricter standard ? Applicants need to know that.
I haven’t seen the briefs but I would note that EPA took a slightly different interpretation in 1989 PM-10 increment. In 1989 proposed pm-10 increment rule (54 FR 41218) they asserted statutory authority to issue PM-10 increment because it was a new NAAQS despite it being only a new indicator for a pollutant, particulate matter, for which a NAAQs had been established prior to 1977. In short EPA relied on the second sentence in 166(a) for a revised NAAQS. Com mentors to the proposed rule argued EPA had no authority because it was not a new NAAQS. Of course EPA’s final PM-10 rule never settled this issue because the 1990 CAAA included a new section, 166(f), specifically authorizing EPA to issue new PM-10 increment of “equal stringency” to the existing statutory PM increment.
John: The question in this case wasn’t EPA’s authority; it was whether EPA has an obligation to promulgate new regulations. The court certainly understood that EPA has the authority to do so, but it concluded that EPA had no obligation to do so.