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National Petrochemical & Refiners Ass'n v. EPA

ELR Citation: 32 ELR 20644
Nos. No. 01-1052, 287 F.3d 1130/(D.C. Cir., 05/03/2002)

The U.S. Court of Appeals for the District of Columbia Circuit denies petitioners' challenge to a U.S. Environmental Protection Agency (EPA) rule requiring drastic reductions in exhaust emissions from diesel trucks and buses beginning in 2007 and requiring the maximum sulfur content of diesel fuel to be reduced from 500 parts per million (ppm) to 15 ppm beginning in 2006. The court rejects claims that engine manufacturers will be unable to develop emissions-control systems satisfying the new rule. EPA predicts that two relatively new technologies will aid in achieving the 2007 reductions: the catalyzed diesel particulate filter and the nitrogen oxide (NOx) adsorber. EPA was not obliged to provide detailed solutions to every engineering problem, but had only to identify the major steps for improvement and give plausible reasons for its belief that the industry will be able to solve those problems in the time remaining. And since EPA is authorized to adopt technology-forcing regulations, a petitioner's evidence that current technology is inadequate is not enough to show that EPA was arbitrary in predicting future success. The court further holds that petitioners unsuccessfully challenged the feasibility of a portion of the rule that eliminated a preexisting exemption for emissions from engine crankcases. The requisite filtration systems are already required in Europe and have been used on a manufacturer's heavy-duty diesel engine in the United States since 1999. The court also rejects claims that the 15 ppm sulfur requirement is arbitrary, capricious, and contrary to law. EPA's determination that NOx adsorption technology is viable and necessary justifies the 15 ppm sulfur diesel fuel standard. EPA has evidence that application of this technology is feasible, appears to have set forth an engineering path rather than mere optimism, and has given a reasoned explanation why it believes this path can be followed. The court also rejects claims that the 15 ppm sulfur requirement would result in supply shortfalls of diesel fuel. The court then holds that EPA's decision to phase in ultra-low sulfur diesel does not undermine the fuel standard, its selection of the primary test method was not arbitrary and capricious, and it complied with the Regulatory Flexibility Act. The court next upholds changes the rule made to the Averaging, Banking, and Trading program, which allows engine manufacturers who produce engines cleaner than those required by the regulations to generate "credits" that they may then use to offset higher emitting engines, save for future use, or sell to other manufacturers. The court also dismisses other challenges either because they were time barred, the petitioners lacked standing, or the claims were unripe.

Counsel for Petitioner
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20004
(202) 662-6000

Counsel for Respondents
Eric G. Hostetler
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20503
(202) 514-2000

Before Sentelle, Tatel, and Williams, JJ.