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New York v. EPA

Citation: 28 ELR 20501
No. 96-1714, 133 F.3d 987/(7th Cir., 01/12/1998)

The court denies a petition challenging the U.S. Environmental Protection Agency's (EPA's) decision to grant a nitrogen oxide (NOx) reduction requirement exemption to four states abutting Lake Michigan under Clean Air Act (CAA) § 182. The effect of the challenged rule is to allow the Lake Michigan states to continue to emit NOx without regard to downwind effects until the completion and implementation of a CAA § 110(a)(2)(D) proceeding. The petitioner downwind states' claim that EPA can grant a CAA § 182(f) exemption from the normal restrictions on NOx only in conjunction with the approval of a state implementation plan (SIP) or a revision of such a plan. The court first holds that EPA acted reasonably in granting the exemption after determining that additional reductions in NOx emissions would not contribute to the attainment of the national ambient air quality standards for ozone in the Lake Michigan area, without regard to any downwind effects. The court finds that EPA's interpretation of CAA § 182 is a plausible reading of the statute, and if, at a later date, EPA finds that downwind effects are significant, it will have to rescind the exemption granted under CAA § 182(f)(3). Meanwhile, the states do not have to require expensive measures of compliance that might prove wasted should downwind effects be found not serious at all. The court then notes that a CAA § 182 exemption may be given to a state before that state submits its SIP to EPA, and only then must downwind effects be considered. To require a state to submit a SIP and then ask for an exemption, as the downwind states interpret CAA § 182(f), would defeat the apparent purpose of CAA § 182(f)(3). The court then holds that EPA's determination that further NOx emissions reductions by stationary sources in the Lake Michigan states would do nothing for the states' ozone problem was reasonable. EPA's methodology of comparing the effects on the ozone level of substantial reductions in the emission of volatile organic compounds and NOx is a sensible reading of the statute.

Counsel for Petitioner
James G. Snyder
Snyder, Kiley, Toohey & Corbett
160 West Ave., P.O. Box 4367, Saratoga Springs NY 12866
(518) 584-1500

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

Before Rovner and Wood, JJ.