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State & Local News Vol. 22, No. 4, Summer 1999 ENVIRONMENTAL UPDATEBy Stephanie P. BrownState and local governments that viewed the U.S. Environmental Protection Agency's (EPA's) new standards for ozone and particulate matter (PM) as an impediment to business development can breathe a sigh of relief due to a recent court ruling that nullifies those standards. These jurisdictions (and affected businesses), however, might need to hold their breath as EPA reworks these rules to pass judicial muster. On May 14, 1999, the U.S. District Court for the District of Columbia remanded the new air standards to EPA due to constitutional defects. See American Trucking Associations v. U.S. Environmental Protection Agency, No. 97-1440, 1999 U.S. App. LEXIS 9064 (D.C. Cir. 1999). Pursuant to sections 108 and 109 of the Clean Air Act, 42 U.S.C. §§ 7408-7409, EPA must promulgate and periodically revise national ambient air quality standards (NAAQS) for air pollutants identified by EPA as meeting certain statutory criteria. In July 1997, EPA issued final rules revising the NAAQS for PM and ground-level ozone. See 62 Fed. Reg. 38,652 (PM); 62 Fed. Reg. 38,856 (ozone). These new NAAQS would have required states to implement more stringent air quality regulations that, among other things, would subject new and existing businesses-including certain, formerly exempt small businesses-to stricter air emission standards. Industry and several states sued EPA to block implementation of the new NAAQS. The court ruled that, because EPA failed to articulate any "intelligible principle" for its selection of the specific new standards, the agency's rules constituted a violation of the nondelegation doctrine. This constitutional separation of powers principle prohibits Congress from enacting legislation that is so broad as to effectively delegate congressional legislative authority to administrative agencies. Rather than rule that the Clean Air Act provisions themselves were unconstitutional in granting the agency unfettered discretion, the court remanded the rules to allow EPA to formulate a statutory interpretation that satisfies constitutional requirements. Notably, the court did not question the science underlying EPA's determinations but, rather, questioned the perceived absence of a coherent rationale for selecting one particular regulatory cut-off point over another. (In so doing, the court raised the possibility of allowing EPA to formulate zero-emission standards.) The court, however, rejected petitioners' nonconstitutional arguments, among other things, ruling that EPA need not consider compliance costs in its rulemaking. Although the court did not vacate the new ozone standard, the court deemed the rule unenforceable. The court vacated EPA's old "course" PM standard (regulating particles with diameters under 10 micrometers), and invited briefing on whether to vacate the new "fine" PM standard (governing particulates 2.5 micrometers or smaller). Because the ruling raised constitutional impediments to these particular agency pronouncements, the opinion may encourage challenges to other rulemakings viewed by regulated entities as unjustifiably expanding the agency's authority. For example, industry has long criticized EPA's interpretation of its authority under the Clean Water Act to regulate "navigable" waters to include authority over wetlands as well. Thus, this ozone/PM ruling could be used by others to challenge what they perceive as overreaching federal agency authority. EPA plans to appeal this ruling. In the meantime, the immediate effect on state and local governments' economic development efforts is uncertain while these jurisdictions await the outcome of such an appeal. Stephanie P. Brown is a Branch Chief in U.S. EPA's Office of Enforcement and Compliance Assurance, Office of Site Remediation Enforcement. She may be reached at 202/564-2596 or brown.stephanie@epa.gov. The views expressed here do not necessarily represent those of U.S. EPA.
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