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American Trucking Ass'n v. EPA

ELR Citation: 30 ELR 20119
Nos. Nos. 97-1440, -1441, 195 F.3d 4/49 ERC 1391/(D.C. Cir., 10/29/1999) petition for reh'g

The court denies in part and grants in part the U.S. Environmental Protection Agency's (EPA's) petition for rehearing of a decision holding that EPA's revised national ambient air quality standards (NAAQS) for ozone were not based on intelligible principles in the Clean Air Act (CAA) for setting such standards and, thus, effected an unconstitutional delegation of legislative power. The court first holds that because EPA did not previously claim CAA §109 as an intelligible principle and failed to argue that its revised NAAQS were promulgated in accordance with that principle, the court can only address §109's fulfillment of the nondelegation doctrine after EPA applies it in setting NAAQS. The court next holds that it has jurisdiction to review whether CAA Subpart 2 prevents EPA from implementing a revised ozone NAAQS under CAA Subpart 1 because EPA's interpretation of Subpart 2 is a final decision not subject to revision. There is nothing tentative about EPA's interpretation of Subpart 2, it is unambiguous, and by promulgating a revised ozone NAAQS, EPA imposed a number of requirements on the states. The court further holds that EPA's new interpretation of CAA §181(a)(1) as applying only to designations under CAA §107(d)(1)(C) and §107(d)(4) contradicts the normal rule of statutory construction.

The court, however, holds that it erred in its original opinion by treating the attainment dates in Subpart 2 as representing Congress' judgment about what is "as expeditiously as practicable" for reducing ozone levels. Therefore, Subpart 2 erects no bar to EPA's requiring compliance with a revised secondary ozone NAAQS as expeditiously as practicable. In addition, the court revises its original opinion to clarify that the designation of an area as nonattainment under a revised CAA §107(d)(1) ozone NAAQS can only be enforced in conformity with Subpart 2.

Last, the court holds that EPA's petition for rehearing raised no doubts that CAA §108(a)(2)'s identifiable effects review requirement for a pollutant includes that pollutant's beneficial health effects.

[The district court's decision in this litigation is published at 29 ELR 21071.]

Counsel for Petitioners
Edward W. Warren
Hunton & Williams
1900 K St. NW, Washington DC 20006
(202) 955-1500

Counsel for Respondent
Mary F. Edgar
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams, Ginsburg, and Tatel, JJ.