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Clean Air Implementation Project v. EPA

Citation: 28 ELR 21519
No. 97-1117, 150 F.3d 1200/46 ERC 2089/(D.C. Cir., 08/14/1998)

The court holds that trade associations' action for judicial review of a U.S. Environmental Protection Agency (EPA) rule permitting the use of "any credible evidence" to prove or disprove Clean Air Act (CAA) violations is not ripe for review. The heart of the associations' argument is that the credible evidence rule, by altering the means of determining compliance for the new source performance standards and the hazardous air pollutant standards, increases the stringency of the underlying standards. The court first holds that the associations' contention that any change in compliance method or test is substantive is not ripe for review. Neither element of the Abbott Laboratories v. Gardner, 287 U.S. 136 (1967), inquiry — fitness for judicial decision and hardship of denying relief — has been satisfied. EPA's credible evidence rule is final, but in contending that the rule alters the standards, the associations have raised issues that are not purely legal, issues that are not suitable for decision in the abstract. An enforcement action brought on the basis of credible evidence would provide the factual development necessary to determine whether the new rule has affected whatever existing standard is involved. Moreover, the associations cannot point to any great hardship they would suffer by the court's deferring judicial review, as the rule does not require them to engage in, or to refrain from, any conduct. The court next holds that it is premature for the court to decide the associations' contention that the credible evidence rule illegally converts periodic standards to continuous ones. EPA points to provisions of the CAA and implementing regulations seeming to support its view that compliance is required continuously, not periodically. Still, the effect of the credible evidence rule on compliance obligations is difficult to assess without any information or experience showing how the rule operates in particular settings. Thus, this issue is unripe for review. Because the merits of the associations' first two contentions are not justiciable, the court does not reach their related assertion that the CAA Amendments of 1990 provide no basis for promulgating the credible evidence rule. The need for statutory authority depends in the first instance on what it is that the credible evidence rule really accomplishes.

The court also holds that it cannot decide the associations' claim that the credible evidence additions to the state implementation plan regulations set forth at 40 C.F.R. parts 51 and 52 illegally invade the authority of states under the CAA. Nothing in the amended regulations requires states to change their implementation plans. Even if the revised regulations forced the states to submit new plans, the court would find the associations' challenge unripe. Although the question of whether EPA had statutory authority is a purely legal one, the effect of the credible evidence rule on the associations is highly uncertain. The court further holds that an intervenor's claim that EPA attempted unlawfully to revise the permit shield regulations in promulgating the credible evidence rule is unripe for review. The intervenor's argument was based on language contained in the preamble to the credible evidence rule. The rule did not change any language in the regulations implementing the permit program, and it is doubtful that the preamble alone is definite and specific enough to be a binding statement of Agency policy.

Counsel for Petitioners
Henry V. Nickel, William H. Lewis Jr.
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

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

Before Silberman and Williams, JJ.