• ENDNOTES

    On May 14, 1999, a 3-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued its opinion in American Trucking Associations, Inc., (ATA) v. EPA (2) regarding the validity of National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter (PM). In an opinion that shocked some and surprised nearly all, the court cited a violation of the nondelegation doctrine and remanded both NAAQS to the U.S. Environmental Protection Agency (EPA), and ruled on a host of other issues relevant to the NAAQS-setting process.

Remand of the NAAQS due to Violation of the Nondelegation Doctrine

     In 1997, EPA promulgated a revised NAAQS for ozone (called the "8-hour ozone standard") and promulgated a new NAAQS for fine particulate matter (called the "PM2.5 standard") (3) pursuant to Section 109 of the Clean Air Act (CAA) which requires EPA to establish primary NAAQS that are "requisite to protect the public health." (4) Both standards were challenged by a host of petitioners, including industrial and electric utility interests, transportation interests, and Midwestern states that would bear the brunt of compliance with the new standards. In the most significant element of the ATA opinion, the court held that EPA exercised too much discretion in promulgating both the 8-hour ozone standard and the PM_2.5 standard, thereby violating the nondelegation doctrine.(5)

     When determining the specific pollutant concentration to establish as the NAAQS, EPA considers the severity of the adverse effects wrought by a pollutant, the certainty that the adverse effects will occur, and the size of the population that will be affected. (6) According to the court, although these factors relied upon by EPA are "reasonable," they are incomplete because:

EPA appears to have articulated no "intelligible principle" to channel its application of these factors; nor is one apparent from the statute. . . . Here it is as though Congress commanded EPA to select "big guys," and EPA announced that it would evaluate candidates based on height and weight, but revealed no cut-off point. The announcement, though sensible in what it does say, is fatally incomplete. The reasonable person responds, "How tall? How heavy?" (7)

The prior NAAQS for ozone was at a level equivalent to 0.09 parts per million (ppm). EPA set the 8-hour ozone standard at 0.08 ppm. EPA never provided an explanation to the satisfaction of the court for choosing 0.08 ppm, as opposed to 0.07 ppm or some other level. EPA failed to contradict the intuitive proposition that strengthening the ozone standard even further would result in additional public health benefits. (8) Thus, the court held, EPA’s promulgation of the 8-hour ozone standard and the PM_2.5 standard violated constitutional requirements because EPA has too much discretion in establishing the NAAQS. Rather than declare the provisions of the CAA requiring EPA to promulgate NAAQS themselves unconstitutional, the court remanded both standards to EPA so that it might attempt to promulgate NAAQS in a constitutional manner. (9)

Other Rulings Favoring the Petitioners

     The court also ruled in favor of the petitioners on several other issues. First, the court held that Subpart 2 of Part D of the CAA provides the "classification" scheme (e.g., marginal, moderate, etc.) (10) and attainment dates for all ozone nonattainment areas.(11) EPA had asserted that Subpart 2 provided the classification scheme and attainment dates only for areas designated nonattainment under the former 1-hour ozone standard (which was in effect when Subpart 2 was enacted) because the classifications are tied to ozone concentrations that are relevant only with respect to the 1-hour standard.(12) Further, the attainment dates specified for "marginal" and "moderate" areas have already passed, and the date for "serious" nonattainment areas to comply with the standard is November 1999. (13) Based on these factors, EPA believed that it had the authority to develop different classifications and attainment dates for areas to be designated nonattainment under the revised 8-hour ozone standard. (14)

     The ATA court did not agree with EPA’s reasoning and instead held that by providing specific classifications and attainment dates in Subpart 2, Congress intended to preempt EPA from adopting more stringent compliance requirements for the pollutant ozone.(15) The court found that EPA’s compliance schedule for the 8-hour ozone standard would require Los Angeles, the nation’s only "extreme" nonattainment area, to comply with the more stringent 8-hour standard at the same time that Congress had provided for it to comply with the 1-hour standard under Subpart 2. (16) Therefore, the court held that "EPA is precluded from enforcing a revised ozone NAAQS other than in accordance with the classifications, attainment dates, and control measures set out in Subpart 2." (17) Given the fact that the court approved of EPA’s ability both to revise the ozone NAAQS and to designate areas as nonattainment under a revised ozone NAAQS (discussed below), this holding that a revised ozone NAAQS can only be enforced in the same manner as the 1-hour standard is quite perplexing. The court is implying that Congress authorized EPA to revise the ozone NAAQS and to designate nonattainment areas under the revised NAAQS, but withheld from EPA the power to enforce a revised NAAQS.

     Second, in an even more controversial portion of the ATA opinion, the court held that EPA must consider alleged health benefits of tropospheric (ground-level) ozone. It is well-known that stratospheric ozone protects human health by absorbing ultraviolet radiation entering the earth’s atmosphere. The court held that in establishing the ozone NAAQS, EPA must consider any positive benefits that tropospheric ozone may provide, such as potentially complementing the benefits provided by stratospheric ozone. (18)

     Third, the court vacated the PM₁₀ standard. EPA asserts that coarse particles (those smaller than 10 microns but larger than 2.5 microns) have different health effects than fine particles (those smaller than 2.5 microns). (19) However, PM₁₀ is defined as all particulate matter 10 microns or less, so by definition, PM₁₀ also includes the PM_2.5 fraction of overall particulate matter. (20) Therefore, the amount of coarse particulate matter allowed in the ambient air is directly related to the amount of fine particulate matter in the air. The court illustrated its point with the following example. An area which just attains the PM_2.5 standard of 15 micrograms per cubic meter (ug/m³) could have up to 35 ug/m³ of coarse PM (to just attain the PM₁₀ standard to 50 ug/m³); whereas an area with only 5 ug/m³ of PM_2.5 would be allowed 45 ug/m³ of coarse PM. (21) Since the health effects of the coarse and fine PM are different, and the amount of coarse particulate matter allowed varies according to the amount of fine particulate matter present, the court held that the PM₁₀ standard was "arbitrary and capricious" and vacated it. (22) The court requested additional briefing as to whether the former PM₁₀ standard will "spring back to life" as a result of its vacation of the coarse PM standard. (23)

Rulings favoring EPA

     EPA did prevail on a number of issues that the petitioners advanced before the court. Briefly, they are that Section 109 of the CAA precludes EPA from considering the costs of implementation when establishing NAAQS; (24) EPA cannot consider the adverse health effects resulting from unemployment caused through the implementation of NAAQS (this is a cost, so it cannot be considered); (25) the National Environmental Policy Act (NEPA) does not impose requirements on the NAAQS-setting process beyond those contained in the CAA; (26) EPA is not required to prepare a Regulatory Impact Statement pursuant to the Unfunded Mandates Reform Act because it would provide EPA only with cost information that it is prohibited from considering; (27) EPA does not have to conduct a regulatory flexibility analysis to evaluate the impact of the NAAQS on small businesses because the implementation of the NAAQS is controlled by the states, not EPA; (28) and EPA does not have to establish the PM_2.5 standard at a level that eliminates all visibility impacts because EPA’s independent Regional Haze Rule specifically addresses visibility impacts. (29)

     As implied above, the court also rejected the challenger’s claim that Subpart 2 codified the 1-hour ozone standard and thus precluded EPA from revising the ozone NAAQS. EPA therefore retains the authority to revise the ozone NAAQS. (30) The court also held that EPA is required to designate areas as nonattainment within two years of its promulgation of a revised NAAQS. (31) Again, however, it is unclear why EPA would ever exercise this authority to revise the ozone NAAQS (or why Congress would have granted EPA the power), given the court’s holding that Subpart 2 precludes EPA from implementing any ozone NAAQS other than the 1-hour ozone standard.

     One of the more important elements of the opinion for EPA if it survives an appeal is the court’s holding with regard to the secondary ozone NAAQS. (32) The court held that the classification scheme and attainment dates of Subpart 2 apply only to the primary ozone NAAQS, and that Subpart 2 erects no bar to EPA’s requiring compliance with a revised secondary ozone NAAQS. (33) The only limitation that the court puts on EPA’s enforcement of a revised secondary ozone NAAQS is that EPA cannot begin implementing one in a specific area until it attains the 1-hour ozone standard. (34) Therefore, if this opinion stands and EPA repromulgates the 8-hour standard in a constitutional manner, then it can implement the secondary 8-hour standard in all areas that have attained the 1-hour standard (which includes all of Florida), despite the fact that it cannot enforce the primary 8-hour standard due to the presence of Subpart 2.

     Finally, the challenger’s most serious contention with the 8-hour ozone and PM_2.5 standards was that the science that EPA relied upon in promulgating the standards was insufficient as a basis for NAAQS. However, the ATA opinion does not even mention this argument. It is unclear whether the court was unpersuaded by this argument, or if the court decided that since it was remanding the two NAAQS to EPA for further rulemaking that it was unnecessary to rule on the merits of this argument.

Where do we go from here?

     In a press release issued the day the opinion was published, EPA stated that it was reviewing all options available to preserve the ozone and PM NAAQS. EPA has until June 28, 1999, to petition for the District of Columbia Circuit to rehear the case en banc. (35) The filing of such petition will stay the effect of the ATA opinion pending a decision on the petition, unless the court orders otherwise.(36) Therefore, a stay could be granted within the next month, and the merits of the case could be redecided by the full court within about a year. EPA can also appeal to the U.S. Supreme Court, where a decision would be expected in two to three years. EPA can petition either the D.C. Circuit or the Supreme Court to stay the effect of the ATA opinion pending review by the Supreme Court. (37)

     The remand of the 8-hour ozone standard and the PM_2.5 standard have thrown into question the basis for many of EPA’s ongoing programs to reduce air pollution. Some of the important national issues resulting from this ruling, which may not be resolved until the last appeal in this matter is decided, are:

• How this affects EPA’s current schedule for implementing the 8-hour ozone standard, which calls for states to submit nonattainment area recommendations to EPA this July;
• The apparent absence of any federal ozone standard in those areas where EPA has already revoked the prior 1-hour ozone standard (this includes all of Florida);
• Whether a valid basis exists for EPA’s 22-state NOx SIP call rule (this rule does not directly impact Florida, and the D.C. Circuit has already indefinitely stayed the submission of any revised SIPs to comply with this rule);
• The impact this will have on the CAA Section 126 petitions filed by Northeastern states to reduce emissions from other states that are contributing to the petitioning states’ ozone nonattainment problems;
• The need for EPA’s proposed Tier II automobile emissions standards and gasoline sulfur limitations, both of which are based upon anticipated nonattainment problems under the 8-hour ozone standard;
• How this affects a host of more stringent NOx emissions limits that EPA has recently either finalized or proposed for off-road mobile engines (lawnmowers, boat engines, etc.); and
• The impact this will have on EPA’s recently finalized regional haze rule, the implementation of which is tied to the implementation of the PM_2.5 standard.

At the state level, the Florida Department of Environmental Protection (DEP) is moving forward with some ozone NAAQS actions and delaying others. DEP is continuing to work on its recommendation to the Governor for defining new nonattainment area boundaries under the 8-hour ozone standard. However, DEP is delaying it’s revocation of the 1-hour ozone standard and adoption of the 8-hour standard at the state level due to the ATA opinion.

ENDNOTES

(1) Associate, Hopping Green Sams & Smith, P.A., Tallahassee, Florida.

(2) American Trucking Associations, Inc., (ATA) v. EPA, 1999 WL 300618 (D.C. Cir.) (May 14, 1999).

(3) See, 62 Fed. Reg. 38856 and 38652 (July 18, 1997).

(4) 42 U.S.C. § 7409(b)(1).

(5) An adequate explanation of the nondelegation doctrine is beyond the scope of this summary of the many holdings of the ATA opinion. Briefly, the nondelegation doctrine requires that since Congress cannot delegate its legislative power to other branches of government, then it must articulate an "intelligible principle" to govern the person to whom legislative power is delegated. See, Mistretta v. U.S., 488 U.S. 361, 371-3 (1989).

(6) ATA v. EPA, 1999 WL 300618 at 2.

(7) Id. at 1.

(8) Id. at 3.

(9) Id. at 6.

(10) The 1-hour ozone standard is 0.12 ppm and the 8-hour ozone standard is 0.08 ppm. Subpart 2 provides that areas with ambient ozone concentrations between 0.121 and 0.138 are classified "marginal," between 0.139 and 0.160 are "moderate," between 0.160 and 0.180 are "serious," between 0.181 and 0.280 are "severe," and over 0.280 are "extreme." 42 U.S.C. § 7511(a)(1) (Table 1).

(11) Id. at 15.

(12) Id. at 17.

(13) Id.

(14) EPA proposed a classification scheme consisting of "transitional," "traditional," and "international" nonattainment areas under the 8-hour ozone standard. See generally, EPA’s "Proposed Implementation Guidance for the Revised Ozone and PM NAAQS" dated November 17, 1998.

(15) ATA at 18.

(16) Id.

(17) Id. at 15. Note that the court limits this holding to the primary ozone NAAQS. The court later concludes that Subpart 2 does not control the implementation of the secondary ozone NAAQS, as discussed below.

(18) Id. at 22.

(19) Id. at 23.

(20) Id.

(21) Id. at 24.

(22) Id. at 23.

(23) Id. at footnote 8.

(24) Id. at 8.

(25) Id. at 9.

(26) Id. at 11.

(27) Id. at 12.

(28) Id. at 13.

(29) Id. at 27.

(30) Id. at 16-17.

(31) Id. at 17.

(32) Primary NAAQS must protect the public health, whereas secondary NAAQS must protect the public welfare. 42 U.S.C. § 7409(b). Except for the sulfur dioxide NAAQS, every other NAAQS, including the 8-hour ozone standard, establish identical primary and secondary NAAQS for each pollutant. See generally, 40 CFR Part 50. The state implementation plan (SIP) which each state must submit to EPA must provide its plan for attaining both the primary and secondary NAAQS. 42 U.S.C. § 7410(a).

(33) ATA at 20.

(34) Id.

(35) Rules 35 and 40(a)(1), Federal Rules of Appellate Procedure. This would be June 28.

(36) Rule 41(d)(1), Federal Rules of Appellate Procedure.

(37) Rule 41(d)(2), Federal Rules of Appellate Procedure; Rule 23, Rules of the Supreme Court.