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National Environmental Development Association's v EPA.

País/Territorio
Estados Unidos de América
Tipo de la corte
Otros
Fecha
Jul 20, 2012
Fuente
UNEP, InforMEA
Nombre del tribunal
United States District Court, District of Columbia
Juez
Sentelle, Kavanaugh and Ginsburg.
Número de referencia
No. 10-1252
Idioma
Inglés
Materia
Cuestiones jurídicas, Medio ambiente gen., Desechos y sustancias peligrosas
Palabra clave
Acceso-a-la-información Calidad del aire/contaminación del aire Normas sobre la calidad del aire Sustancias peligrosas
Resumen
Several states and state regulatory agencies, together with corporations and industrial associations, petition for review of the Environmental Protection Agency's rule entitled 'Primary National Ambient Air Quality Standard for Sulfur Dioxide,' and of the subsequent denial of petitions for reconsideration of the standard. Petitioners contend, first, that EPA failed to follow notice-and-comment rulemaking procedures, and second, that the agency arbitrarily set the maximum sulfur dioxide (SO2) concentration at a level lower than statutorily authorized. Sulfur dioxide, a "highly reactive colorless gas," derives mostly from fossil fuel combustion. It smells like rotting eggs and, at elevated concentrations in the air, can cause acid rain. Its presence in the ambient air can cause adverse health effects, particularly in asthmatics. After receiving comments on its rule proposal, EPA issued a final rule addressing the primary SO2 standard. 75 Fed. Reg. 35520 (June 22, 2010). EPA mandated that States must meet a new 1-hour SO2 standard using a 99th percentile form, set at 75 ppb maximum SO2 concentration. Also, EPA indicated in the rule, "we are revising our general anticipated approach toward implementation of the new 1-hour NAAQS." Instead of assessing attainment of the standard primarily by monitoring the ambient air, as it had stated it would in the proposed rule, EPA suggested it would use a "hybrid analytic approach" that would combine monitoring with computer modeling to determine compliance. Regarding the modeling concerns, the Appeals Court indicates, "EPA explained that it expected to make initial attainment designations in 2012 based on existing monitoring capabilities, as well as 'any refined modeling the State chooses to conduct specifically for initial area designations.' 75 Fed. Reg. at 35552. That language does not impose new legal obligations to use modeling. To be sure, because EPA now intends to use this hybrid approach, it has scaled back its proposed plans to develop a more extensive monitoring network. . . Petitioners do not argue, however, that they have suffered an injury by not being required to build a more extensive monitoring network. Petitioners will be free to challenge any final action EPA takes that imposes an obligation Petitioners must meet. The challenged provisions here do not meet that standard." Regarding the standard, the Appeals Court rules in part, "Nothing in the CAA requires EPA to give the current air quality such a controlling role in setting NAAQS. And as Petitioners themselves note, the CAA gives EPA significant discretion to decide whether to revise NAAQS. Further, in the final rule, EPA cites evidence that current levels of SO2 in the ambient air, even when the air quality meets the current SO2 NAAQS, still cause respiratory effects in some areas. 75 Fed. Reg. at 35530-31. In short, EPA had discretion to revise the NAAQS and Petitioners' argument is unavailing."