The court vacated the EPA's guidance and ruled that it could not offer an alternative that allows violations of the old one-hour standard to continue
On Jan. 5, 2010, EPA published guidance to the states that would allow them to waive fees under Section 185 of the Clean Air Act relating to compliance with ozone emissions regulations. The guidance assists states in preparing their own State Implementation Plans. It allows states to either use the Section 185 fee program or "an equivalent alternative program" that is "consistent with the principles of section 172(e)" of the Clean Air Act.
The National Resources Defense Council (NRDC) sued EPA in March 2010, maintaining that EPA's action allowing an equivalent, alternative program is arbitrary and capricious, and that allowing fee waivers if an ozone nonattainment area meets an 8-hour testing standard instead of a 1-hour standard is also improper. An 8-hour standard is more protective of the environment than a 1-hour standard. On July 1, the court rejected EPA's arguments that the plaintiffs lacked standing, that the guidance does not qualify as final agency action, and the plaintiffs' claims are unripe for judicial review. The court ruled that the guidance qualified as a legislative rule that EPA was required to issue through notice-and-comment rulemaking, and that one of its features — the "attainment alternative" — violates the plain language of the Clean Air Act. The court vacated the EPA's guidance and ruled that it could not offer an alternative that allows violations of the old 1-hour standard to continue. The law does not allow EPA to retreat from requirements it sets that prove to be too stringent and unnecessary to protect public health, and EPA must go back to Congress if it wants to do so... More
On Jan. 5, 2010, EPA published guidance to the states that would allow them to waive fees under Section 185 of the Clean Air Act relating to compliance with ozone emissions regulations. The guidance assists states in preparing their own State Implementation Plans. It allows states to either use the Section 185 fee program or "an equivalent alternative program" that is "consistent with the principles of section 172(e)" of the Clean Air Act.
The National Resources Defense Council (NRDC) sued EPA in March 2010, maintaining that EPA's action allowing an equivalent, alternative program is arbitrary and capricious, and that allowing fee waivers if an ozone nonattainment area meets an 8-hour testing standard instead of a 1-hour standard is also improper. An 8-hour standard is more protective of the environment than a 1-hour standard. On July 1, the court rejected EPA's arguments that the plaintiffs lacked standing, that the guidance does not qualify as final agency action, and the plaintiffs' claims are unripe for judicial review. The court ruled that the guidance qualified as a legislative rule that EPA was required to issue through notice-and-comment rulemaking, and that one of its features — the "attainment alternative" — violates the plain language of the Clean Air Act. The court vacated the EPA's guidance and ruled that it could not offer an alternative that allows violations of the old 1-hour standard to continue. The law does not allow EPA to retreat from requirements it sets that prove to be too stringent and unnecessary to protect public health, and EPA must go back to Congress if it wants to do so... More