A turbulent ride for EPA's air quality standards

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The last year of the millennium has been a difficult one for the U.S. Environmental Protection Agency (EPA). In one of the biggest stories in the environmental regulatory arena this year, two major air quality standards were given the "heave-ho" by the federal court system in May. Related court actions this year have also served to add to the agency's state of angst.

A little regulatory history
Since EPA was founded, controversy surrounding the development of new air quality regulations has been the rule, rather than the exception. To limit prolonged and expensive "after the fact" litigation, EPA has long adopted the approach of soliciting comments during the regulatory development process from all interested parties. Regulatory input is either formally received as a result of regulations being proposed in the Federal Register, or occurs on an evolving basis from designated stakeholder groups. There is also oversight by other governmental agencies, such as the Office of Management and Budget, to ensure new regulations are justified on a cost benefit basis. By and large these mechanisms have proved effective in reducing controversy associated with regulatory development. However, issues involving the environment, like those debated in the United Nations, often cannot be resolved to the satisfaction of all parties.

The EPA standards at issue
EPA published the standards reviewed by the U.S. Court of Appeals on July 18, 1997. The standards were to have established new National Ambient Air Quality Standards (NAAQS) for both particulate matter and ozone.

The revised ozone standard was to have phased out the one-hour standard with a new eight-hour standard established at the concentration of 0.08 parts per million (ppm). In 1987, EPA passed a new standard for inhalable particulate matter having an aerodynamic diameter of 10 micrometers (µm) or less (PM-10). EPA further refined the standard in 1997 by including a new standard for fine particles having an aerodynamic diameter of 2.5 mm or less. The revised particulate standard added a new annual PM-2.5 standard set at 15 micrograms per cubic meter (µg/m3) and a new PM-2.5 24-hour standard of 65 µg/m3. In addition to the new PM-2.5 standards, EPA decided to retain the existing PM10 standard of 50 µg/m3 and adjusted the PM-10 24-hour standard of 150 µg/m3, by changing the form of the standard.

The court action
On May 14, 1999, in the decision American Trucking Association Inc. et al vs. EPA, a three-judge panel of the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit Court remanded the revised ozone and PM standards to EPA for further consideration. The ruling was a result of a legal action filed by the American Trucking Association, the named party challenging the rules. The justification for remanding the NAAQS was largely a constitutional issue. The federal appellate court argued that EPA acted outside the bounds of the Constitution, because the Clean Air Act does not provide unlimited authority for establishing air standards.

The specific rule of law referenced is the so-called "non-delegation" doctrine. This doctrine holds that Congress cannot delegate lawmaking powers to an agency unless the agency's power is appropriately derived. The legal term for such authority is an "intelligible principle."

In practical terms this ruling left EPA with two options: initiate another long, drawn-out public rulemaking process or appeal the ruling. The agency has chosen the latter.

More clouds on the horizon
EPA's rulemaking authority was also challenged by a second damaging court ruling from the D.C. Circuit Court. On May 25, 1999, the court issued a partial stay in the Nitrogen Oxide (NOx) State Implementation Plan (SIP) call rule. The rule eventually would have required major reductions in NOx emissions from the District of Columbia and 22 states. The rule was directed at trying to manage the ongoing ozone nonattainment problem in many areas of the country. Under the court order, the deadline for compliance (i.e., the submission of revised SIPs by the affected states and the District of Columbia) was stayed indefinitely.

EPA's response
Being a regulatory agency that has dealt with controversy and legal challenges since its founding, EPA has acted rapidly and deliberately to stem these recent court directives. On June 28, 1999, the agency filed a legal instrument in connection with the American Trucking Association case, titled Petition for Rehearing and Petition for Rehearing En Banc to the Court of Appeals. The term en banc means that the petition for rehearing has requested that the entire court of 11 judges rehear the case. The ruling in the case was rendered by a three-judge panel, not the entire court.

Principal reasons cited for the rehearing were that the issues raised by the court's action are of exceptional importance, and that the non-delegation opinion conflicts with Supreme Court decisions and is inconsistent with prior holdings of the Court of Appeals in upholding the EPA position on the Clean Air Act.

If rehearing en banc is rejected, the same three-judge panel may again review the appeal. There is no stated time limit for the court's decision on the petition for rehearing. At press time, the legal wild card is whether the entire appeal will wind up in the U.S. Supreme Court. With the stakes being so high, such an action could occur, especially if the rehearing appeal is unsuccessful.

In relation to the NOx SIP call ruling (and associated implications from the NAAQS ruling), EPA has proposed a variety of actions relating to Section 126 requirements. Section 126 of the Clean Air Act provided the basis of the NOx SIP call by allowing states to ask for pollution reduction from "upwind" neighboring states. This regulatory push and shove will become more complex as time passes.

One prime concern EPA has is the effect all of these challenges will have on another major rulemaking, referred to as the Regional Haze Rule. This rule was finalized April 1999, and has broad-reaching requirements, all designed to reduce the impairment of visibility in certain areas of the country. Since it is linked technically to the recent EPA NAAQS actions, it most certainly will be in the cross hairs of dissenting organizations.

Politics vs. law
The recent rash of judicial opinions and remands represents much more than the debate over the technical and scientific merits of environmental standards. Although the law allows EPA to set standards (air quality or otherwise) at the level "requisite to protect the public health" with "adequate levels of safety," the procedural means for determining these levels has never before been successfully challenged.

This represents a reversal of the philosophy in place since the New Deal in the 1930s, in which Congress tends to delegate difficult technical decisions to administrative federal agencies for implementation. The new interpretation is that political decisions are involved in the setting of environmental standards, and such decisions should involve Congress. This non-delegation doctrine, which has been largely dormant for half a century, would require Congress to become more responsible for the actions of federal regulatory agencies. If fully embraced, this would greatly change the way the federal government functions.

Dealing with regulatory uncertainty
To plan for future standards in a time of legal uncertainty, it is important to first stand back and look at the entire issue in the context of history.

First fact: The recent judicial ruling represents a revival by some judges (and legal scholars) of the constitutional non-delegation doctrine. If embraced by the judicial community, it would have implications not only for EPA, but all other regulatory agencies within the government.

Second fact: For the ruling to be incorporated into the workings of government, it would greatly change the world of Congress. Congress would find its workload and responsibilities increased to a level far beyond present duties.

When considering both of these facts, the reality of whether the constitutional non-delegation doctrine would ever gather momentum in the real world is in doubt.

One important factor in the recent court opinions helps in predicting the status of future air quality standards. The judicial opinions delivered specifically did not embrace the stated argument of the plaintiffs that EPA's voluminous scientific findings were faulty. The reversals were made exclusively on constitutional grounds. This is in accord with regulatory history, which has shown that when federal agencies have developed standards that are designed for the public good, the standards, although sometimes modified, are eventually enacted, despite legal challenges.

For the reasons stated above, it is believed that the recent court decisions represent a delay in the regulatory process, and not a cessation or reversal of air quality standards. No doubt EPA will continue to develop air quality and other environmental standards until public health and the environment are adequately protected.

What this means to industry and the regulated community is that planning for proposed standards should not stop. Waiting for a directive from an agency, without any advanced planning or forethought, would not be a good business practice.

Strategies that can be adopted as part of an existing air quality management program that will provide benefits under future regulations include:

Projecting the future air quality attainment status for an area of concern. Projections should be made for both existing and proposed NAAQS limitations. Information to assist such predictions could include historical monitoring data, state air quality planning studies, and various industrial and population growth forecasts. Areas expecting to be in nonattainment status will require greater emission reductions from both the industrial and transportation sector.

Evaluate the potential for the use of cleaner burning fuels for stationary combustion sources. EPA considers combustion sources as one of the principal culprits in regional air quality nonattainment

Implement energy conservation measures at industrial facilities. Energy use and air quality concerns go hand in hand.

Evaluate the contribution of fugitive emissions from industrial sources. Implement best management practices for emission reductions.

Consider voluntary emission reductions that can create future emission credits in nonattainment regions. Determine if regional emission banks exist and if interstate emission trading agreements are in place.

Carefully document all voluntary emission reductions to allow for potential future credits.

Encourage transportation air quality measures to be implemented. Such reductions can substantially reduce state emission inventories and associated regional modeling for defining future attainment status. Transportation air quality conformity requirements are often not enforced to the extent of industrial air quality standards, creating an inequity between the two sectors.

Become active in regional and national air quality regulatory and technical steering committees.

These are but a few examples of how the regulated community can be proactive in view of the changing regulatory landscape in the air quality management field. Most of these and similar measures are straightforward to implement and will ensure a facility is not caught off guard by "sleeping" air quality regulations that have been temporarily grounded by the judicial system.


e-sources

EPA Office of Air Quality Planning and Standards
www.epa.gov/oar/oaqps

US District Court of Appeals Information
www.ll.georgetown.edu:80/Fed-Ct/cadc.html

American Trucking Association
www.trucking.org

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This article originally appeared in the November, 1999 issue of Environmental Protection magazine, Vol. 10, Number 11, pp. 22-26.

This article originally appeared in the 11/01/1999 issue of Environmental Protection.

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