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The D.C. Circuit Remands the
Ozone and Particulate Matter Clean-Air Standards:
June 10, 1999
On May 14, 1999, a U.S. Court of Appeals ruled that deficiencies in EPA's promulgation of the primary and secondary national ambient air quality standards (NAAQSs) for ozone and particulate matter required that they be sent back to the agency for further consideration. American Trucking Ass'ns V. EPA, No.97-1440, 1999 Westlaw 300618 (D.C. Cir.). Given the perceived impact of these clean-air standards on the economy, it was unsurprising that the judicial challenges were brought in roughly 50 separate actions, filed by numerous state and non-state parties, and small business entities - with two Members of Congress (Rep. Bliley and Sen. Hatch) filing as amici on the side of the challengers. The controversy surrounding the court decision's key rationale for the remand, resurrecting a long-moribund legal doctrine, echoes that surrounding the ozone and particulate matter NAAQSs when they were promulgated in 1997. 1
NAAQSs lie at the very heart of the Clean Air Act (C AA) regime. These standards prescribe maximum pollutant concentrations for ground-level, outdoor air, and have been promulgated by EPA for six pollutants. 2 The NAAQSs determine the stringency of emission limits that each state, in its "state implementation plan," must impose on stationary air pollution sources to achieve the NAAQSs within its borders. NAAQSs come in two forms: "primary NAAQSs" protect the public health, while "secondary NAAQSs" protect the public welfare (non-public health effects). 3
What the Court Said
The two judge majority opinion. The most controversial portion of the majority opinion is Part I, on unconstitutional delegation. This ancient doctrine derives from Article I of the Constitution, which creates the Congress and vests "[a]ll legislative Powers" in that body. Not surprisingly, the Supreme Court eschews a literal reading of "[a]ll," recognizing that Congress routinely delegates quasi-legislative powers to non-Article I bodies. In particular, Congress frequently commits to the specialized expertise of executive-branch agencies the task of rulemaking and standard setting in technical areas -such as air pollution control. The Court has long held that such delegations pass constitutional muster if Congress gives the agency a discernible principle to guide its exercise of that authority.
The majority found that EPA had construed CAA section 109 - requiring that primary NAAQSs be set so as to "protect the public health" "allowing an adequate margin of safety" - so loosely as to render it an unconstitutional delegation of legislative power. The court had no quarrel with the factors used by the agency to assess the public health threat posed by air pollutants. Rather, said the court, EPA had articulated no "intelligible principle" for translating the assessment of factors into a particular NAAQS. Nor, it said, is one apparent from the statute.
Translating the impact factors into a numerical NAAQS requires more, insisted the court, than asserting that a higher NAAQS would allow greater public health harm, and a lower NAAQS less harm. This is always true for a nonthreshold pollutant, 4 but does not fix the maximum acceptable degree of harm. EPA also argued that at pollution levels below the promulgated standard, health effects are less certain. The court rejected this argument as well. "[T]he increasing uncertainty argument," said the court," is helpful only if some principle reveals how much uncertainty is too much." Without such a principle, it insisted, EPA's discretion leaves it free to set a NAAQS at "any point between zero and a hair below the concentrations yielding London's Killer Fog." 5
The court did not void the relevant CAA provision, but rather gave EPA an opportunity to develop the constitutionally required intelligible principle. Such principle, it opined, could not bring in compliance costs, since it has long been judicially held that EPA may not consider costs in setting primary NAAQSs. The principle, in theory, could call for the elimination of all health risks, but that might require EPA to set the NAAQSs at zero - a solution none of the patties seem to want. And a fixed probability of encountering effects makes no sense, given the wide diversity in the seriousness of possible effects. The best the court could suggest was "a generic unit of harm that takes into account population affected, severity and probability." 6 If EPA finds that no principle is available, however, it would have to seek ratification of its NAAQSs by Congress.
Moving beyond the delegation issue, the court in Part II rejected petitioner arguments insisting that EPA had failed to consider this or that assertedly required factor in revising the NAAQSs. For example, cost may not be considered in revising a NAAQS, just as it may not be considered in setting the initial NAAQS.
In Parts III and IV, the court turned to arguments specific to one or another NAAQS. Part III addressed the ozone NAAQS, holding that 1990 CAA amendments defining "marginal" to "extreme" ozone nonattainment by resort to statutorily specified atmospheric concentrations, 7 did not by that fact bar EPA from revising the ozone NAAQS. On the other hand, EPA is precluded from enforcing a revised primary ozone NAAQS other than in accordance with the classifications, attainment dates, and control measures set out in "subpart 2": the act's provisions dealing specifically with ozone nonattainment.8 For this reason, the court declined to vacate the new ozone standards while the agency, per the delegation-doctrine discussion above, seeks to divine an "intelligible principle."
The court also concluded that EPA must, in setting or revising a NAAQS, consider the benefits as well as harmful effects of the pollutant. Thus, in addressing ozone, the agency must weigh any protection from ultraviolet radiation by ground-level ozone. This, said the court, the EPA may do on remand, assessing any such positive effects under the "intelligible principle" that it may develop.
Part IV, on the particulate matter (PM) NAAQSs, opens by sustaining EPA's decision to regulate coarse particulate pollution (2.5 to 10 micrometers in diameter) above the 1987 levels. Such coarse pollution, the court found, had documented health effects apart from those of fine particulate matter (below 2.5 micrometers in diameter). Still, the court held, EPA cannot deal with coarse particulate matter through a "PM1011 NAAQS that covers both coarse and fine particulates, since PM10 is an arbitrary indicator for coarse particulate pollution. The PM10 NAAQS was therefore vacated.
Part IV also rejected an argument against the new PM2.5 NAAQS made by several Midwestern(coal producing) states. They argued that because EPA is regulating fine particulates separately for the first time, PM2.5 should be considered a new pollutant, with all the CAA procedures that entails. The court saw it differently, viewing the PM2.5 standard as merely a continuation of EPA's trend, dictated by evolving science, toward focussing PM controls on the most injurious part of the particle-size spectrum. Nonetheless, because of its delegation doctrine holding, the court invited briefing on the question of remedy.
Finally, the majority held in Part IV that the CAA does not require EPA to prove the biological mechanism by which particulates in the air cause ill health effects. It is enough to show statistical correlation between exposure and such effects.
The one-judge dissent. The dissenting judge dealt exclusively with the delegation issue, accusing the majority of "ignor[ing] the last half century of Supreme Court nondelegation jurisprudence." The NAAQS-setting section of the CAA, he believed, does not give EPA unbridled discretion. Rather, he concluded, the section was narrower and more principled than delegations of legislative authority upheld by the Supreme Court. Moreover, as a factual matter, EPA had carefully circumscribed its discretion in setting the NAAQSs here - as by following American Thoracic Society guidelines and picking standards within ranges recommended by the Clean Air Scientific Advisory Committee (an independent scientific review panel).
While EPA doubtless has discretion in setting NAAQSs, the majority opinion's assertion that such discretion is without bounds can be questioned. The NAAQS-setting provision in the CAA requires that primary NAAQSs be based on "air quality criteria" published by the agency, and be set so as to "protect the public health" allowing an "adequate margin of safety." 9
Moreover, as the dissent noted, the Supreme Court has sustained against nondelegation-doctrine challenge statutes instructing the FCC to regulate broadcast licensing "in the public interest," 10 authorizing the Price Administrator to set "fair and equitable" prices, 11 and empowering the Attorney General to regulate drugs that pose an "imminent hazard to public safety." 12 If these vague standards are constitutionally adequate constraints on agency discretion, then arguably the CAA's bounds on the setting of NAAQSs are as well.
Indeed, except for two Depression-era cases in which standards were found to be absent, the Court has never found constitutional fault with a congressional delegation.13 As noted above, delegations sustained have sometimes been extremely broad. All that the Court seems to insist on (sometimes) is that Congress employ a delegation which "sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will." 14 Where the congressional standard is combined with requirements of notice and hearing and agency statements of findings and considerations, so that judicial review under due process standards is possible, the constitutional requirements of delegation have been fulfilled.15 The judicial review provisions of the CAA seem to satisfy this lax standard.16
The decision also has important implications for federal environmental regulation generally - indeed, for all delegations of congressional authority to agencies. All future new and revised NAAQSs are presumably subject to challenge on nondelegation grounds
- unless, of course, the agency follows some judicially approved "intelligible principle" developed in the current litigation.17 Similarly, observers have mentioned as vulnerable the federal wetlands program in the Clean Water Act and the expansion of chemical release reporting requirements under the Emergency Planning and Community Right-to-Know Act. Ultimately, the decision reaches into all executive-branch standard setting.
On a separate issue, the majority's reading of subpart 2 as precluding enforcement of the revised ozone NAAQS seems anomalous. It appears to assume that a revised ozone NAAQS can be implemented only pursuant to subpart 2, which addresses non attainment solely in terms of a 1-hour (rather than the new 8-hour) standard.
EPA has said that it will appeal the decision.
Although legislation (either to impose the new standards by statute, or to insure their continued delay by imposing a moratorium) might be introduced, Congress appears likely to function primarily as an interested observer while the appeals process runs its course. EPA's decision to promulgate the NAAQSs revisions in 1997 was a major source of controversy in the Congress.18 Congress resolved its debate with relatively minor legislation that codified the President's announced implementation schedule (P.L. 105-178, Title VI) and left the more contentious issues for the courts to resolve. The D.C. Circuit's May 14 decision would seem unlikely to move Congress in a different direction now.
By itself, the decision is also unlikely to have major short-term effects. EPA would have until July 2000 to promulgate a list of ozone nonattainment areas under the 8-hour standard and until December 2005 to designate PM2.5 areas, should the standards ultimately be upheld. State implementation plans for those nonattainment areas are not due until 2003 and 2008, respectively. The ozone deadlines could be delayed by the appeal process, but the monitoring to identify nonattainment areas will go forward in any event. The PM2.5 deadlines are so far in the future that they may not be affected, unless the decision is finally upheld and the standards overturned.
Meanwhile, other sections of the Act that are unaffected by decisions regarding the NAAQSs, are driving continued improvements in air quality and will force major sectors of the economy to implement more stringent emission controls. These include Phase II of the Acid Rain program under Title IV of the CAA, Tier 2 auto emission standards under section 202, the hazardous air pollutant program under section 112, and the regional haze program under section 169.
Ultimately, no matter what the outcome of American Trucking Associations, Congress may wish to address the issue of congressional delegation of authority to set NAAQSs. The language of section 109, requiring protection of public health with an adequate margin of safety but providing no further "intelligible principle" by which EPA should make such a determination, is reminiscent of the original language of section 112 of the CAA governing hazardous air pollutants (HAPs). Between 1970 and 1990, EPA had great difficulty setting standards under that section, since it seemed to imply that emissions of nonthreshold pollutants should not be allowed at all. After years of court challenges to EPA attempts at regulation, Congress, in the 1990 CAA amendments, enacted a completely different approach to regulating HAPs: a list of pollutants was identified in the statute, and EPA was directed to promulgate emission standards for sources of these pollutants that embodied the Maximum Achievable Control Technology (MACT), a term defined with great specificity in the Act. Later, the Agency is to examine residual risks remaining after the imposition of MACT; here, too, Congress was specific in establishing a standard by which to judge the need for regulation ( a 1-in-a-million cancer risk). Section 109 presents similar issues and might be susceptible to a similar solution. Whether Congress will address this issue is likely to depend on the outcome of EPA's expected appeal in American Trucking Associations, however. If the en banc Court of Appeals or the Supreme Court reaffirms EPA's authority as the agency exercised it in 1997, congressional action to change section 109 would seem less likely.
1 62 Fed. Reg. 38,652
(1997) (particulate matter NAAQS); 62 Fed. Reg. 38,856 (Ozone
NAAQS). See generally John E. Blodgett, Larry B. Parker,
and James F. McCarthy, Air Quality: Background
Analysis of EPA'S 1997 Ozone and Particulate Matter Standards (CRS Report 97-8 ENR).
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