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American Lung Ass'n v. EPA

Citation: 28 ELR 20481
No. 96-1251, 134 F.3d 388/(D.C. Cir., 01/30/1998)

The court holds that the U.S. Environmental Protection Agency (EPA) failed to explain adequately why the physical effects felt by some asthmatics from exposure to short-term, high-level sulfur dioxide (SO2) bursts are not a public health problem under the Clean Air Act. The case arose after EPA declined to establish a five-minute national ambient air quality standard capping SO2 emissions at 0.60 parts per million (ppm). Applying a deferential standard of review, the court first holds that EPA's analysis of the exposure studies in the record, as well as its implication that thousands of asthmatics can be expected to react atypically to SO2 bursts each year, is acceptable. However, the court next holds that EPA failed to explain why SO2 bursts do not amount to a public health concern. The link between this conclusion and the factual record as interpreted by EPA—that repeated exposure is significant and that thousands of asthmatics are exposed more than once a year—is missing. In EPA's only statement resembling an explanation for its conclusion that peak SO2 bursts present no public health hazard, EPA characterizes the bursts as localized, infrequent, and site-specific. However, nothing in EPA's final decision explains why localized, site-specific, or even infrequent events might not create a public health problem, particularly since all pollution is local and site-specific, whether spewing from the tailpipes of millions of cars or a few offending smoke stacks. In addition, the record establishes that at least six communities experience repeated, high five-minute peaks greater than 0.60 ppm of SO2, and these so-called hot spots are not the only places where repeated exposure occurs. Nowhere in the record does EPA explain why these data amount to no more than a local problem. The court then holds that because the administrative record leaves several questions unanswered, it cannot review EPA's decision. With its delicate balance of thorough record scrutiny and deference to agency expertise, judicial review can only occur when agencies explain their decisions with precision. EPA may be within its authority to decide that 41,500 or some smaller number of exposed asthmatics do not amount to a public health problem warranting national protective regulation, but unless it describes the standard under which it has arrived at this conclusion, supported by a plausible explanation, the court has no basis for determining whether EPA's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, the court remands the case to EPA to explain its conclusions more fully.

Counsel for Petitioners
Robert E. Yuhnke
Environmental Defense Fund
1405 Arapahoe Ave., Boulder CO 80302
(303) 440-4901

Counsel for Respondents
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Ginsburg, JJ.