|June 6, 2012|
Previously published on June 4, 2012
At the end of last week, the District Court for the District of Columbia ordered EPA to release a new national ambient air quality standard for particulate matter (”PM”) by this Thursday, June 7th. The decision appears to reflect frustration by the court at EPA’s reluctance to meet deadlines for the release of new rules required by the Clean Air Act. With less than a week to go, and the proposed standards still under review by the White House, EPA will have to move faster than ever to comply with the order or develop yet another creative means of buying itself more time.
National ambient air quality standards are critical to the structure of the Clean Air Act - areas that fail to meet the standards must adopt more stringent regulatory requirements than those with air that meets the standards. As required by the Act, EPA periodically reviews and revises the standards to make sure they reflect the most current scientific analyses, and over time has lowered the PM standards, making it more and more difficult to attain them. In 1997, EPA fundamentally changed the PM standards by adopting a specific standard for “fine particulate matter” or “PM2.5” to address the smaller particles with a diameter of less than 2.5 microns, and in 2006 EPA lowered those standards to 15 ug/m3 (annual) and 35 ug/m3 (daily).
Although EPA’s initial 1997 standards and its decision to focus on PM2.5 survived several legal attacks, EPA’s revision to those standards in 2006 did not. In February of 2009, the U.S. Court of Appeals for the D.C. Circuit remanded the 2006 standards because EPA failed to explain why the standard did not reflect the advice of its scientific advisors, which had recommended an annual standard of between 12 and 14 ug/m3 instead of the 15 ug/m3 standard chosen by EPA.
In response to the remand of its 2006 standards, EPA promised to release new standards by October 2011. However, when EPA failed to meet that deadline, environmentalists again filed suit in February 2012, arguing that, notwithstanding the remand of the 2006 standards, EPA also violated the requirement of the Clean Air Act to review the standards every five years and revise them as needed. In its defense, EPA indicated to the court that it has been reviewing the standard and planned to propose a new standard by August 2012 to be finalized a year later.
But the court has apparently had enough - on Friday June 1st, the court ordered EPA to (1) issue the proposed standard by Thursday June 7th, (2) seek expedited publication of the proposal in the federal register, and (3) schedule public hearings and accept comment within a total of 9 weeks after federal register publication. The court also ordered Assistant Administrator Gina McCarthy to appear before the court to discuss the timing of the rule on June 11th.
The court’s decision is the latest salvo in an ongoing power struggle between EPA and the District Court over the timing of new environmental regulations. The conflict between the two branches of government was recently intensified when the District Court rejected EPA’s request for more time to adopt new emission standards for industrial boilers. After EPA essentially granted its own deadline extension by issuing the rule but staying it for further reconsideration, the court vacated EPA’s stay, but EPA responded by issuing a “no action assurance” letter in which it promised not to enforce the standard in light of its plan to release new standards by April (which EPA still has yet to release). Given the extremely short deadline set in the court’s order on the PM standards, similar actions may be forthcoming.