May 27, 2014

D.C. Circuit upholds EPA's refusal to regulate acid rain arbitrarily

By Jonathan Wood Attorney

Recently, EPA attempted to update its decades-old standard for regulating sulfur and nitrogen oxides — components of acid rain — under the Clean Air Act. The agency and the environmental groups pushing for an update agreed that the old standard was inadequate because it considered only a fraction of these pollutants’ impacts. Yet, after reviewing the existing science and public comments, EPA was forced to admit that it didn’t have the information it needed to set a new standard. Therefore, it suspended consideration of a new standard and undertook a field pilot program to gather data.

The environmental groups argued that EPA’s approach was inappropriate under the Clean Air Act. Rather, the agency should have set a new, strict standard arbitrarily. This despite the fact that both the Clean Air Act and the Administrative Procedure Act forbids rule by bureaucratic whim.

The groups sued to compel the agency to issue a standard anyway. This morning, the D.C. Circuit rejected that challenge, characterizing the argument as “ridiculous” and contrary to “[d]ecades of [court] decisions.” Deferring to the agency’s analysis of the science, the Court reasoned that it had adequately explained why it couldn’t opine on the proper standard in light of the data limitations. The Court also denied that EPA was imposing the Sisyphean task of eliminating all conceivable uncertainty on the environmental petitioners. By explaining the precise shortcomings in the science and initiating a targeted program to develop the necessary data, the agency was acting reasonably and consistent with the statute according to the Court.

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