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National Environmental Development Ass'n Clean Air Project v. Environmental Protection Agency

ELR Citation: 42 ELR 20155
Nos. 10-1252, (D.C. Cir., 07/20/2012)

The D.C. Circuit dismissed petitions challenging EPA's primary NAAQS for sulfur dioxide (SO2). The petitioners—several states, state regulatory agencies, corporations, and industrial associations—argued that EPA failed to follow the APA's notice-and-comment rulemaking procedures because it did not include in its proposed rule any suggestion that it was considering changing its method of determining attainment of the SO2 standard from an air-monitoring approach to a hybrid approach using computer modeling in combination with air monitoring. But because the challenged statements do not constitute final agency action, the court lacks jurisdiction over this issue. The court also rejected the petitioners' claim that the Agency arbitrarily set the maximum SO2 concentration at a level lower than statutorily authorized. The CAA requires EPA to set NAAQS at a level “requisite to protect the public health,” allowing an adequate margin of safety. Congress, in turn, has defined public health broadly, requiring NAAQS to “protect not only average healthy individuals, but also ‘sensitive citizens,’” such as children or people afflicted with asthma, emphysema, or other conditions causing sensitivity to air pollution. Here, EPA reasonably concluded that vulnerable populations would suffer more serious health effects than mild and moderate asthmatics in setting the standard. In addition, EPA has discretion to set a NAAQS at a concentration below a level that has been demonstrated to have a statistically significant association with negative health effects.