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November 19, 2012
EPA not done with NESHAPs, rules Court

The EPA’s “determination” that it had completed its statutory responsibility to issue National Emissions Standards for Hazardous Air Pollutants (NESHAP) that covered 90 percent of aggregate emissions from regulated sources was invalidated by the U.S. Court of Appeals for the D.C. Circuit.  According to the three-judge panel, EPA’s determination is illegal because the Agency did not notice it for public comment before it was made final, as required by the Administrative Procedures Act (APA).  The court remanded the determination to the Agency to fulfill its notice-and-comment requirements.

Two NESHAP provisions

The case (Sierra Club v. EPA, D.C. Circuit, No. 11-1184, Nov. 9, 2012) focuses on EPA’s 20-year effort to satisfy Clean Air Act requirements first to list sources subject to NESHAPs by November 15, 1995, and then to promulgate the standards themselves by November 15, 2000.  Neither of those deadlines was met.  But on several occasions, the courts allowed the Agency additional time to complete the work.  Finally, in March 2011, the EPA issued its determination that it had met both its regulatory obligations.

In its petition, the Sierra Club argued that the determination was issued even though the EPA had yet to set emissions standards for two types of HAPs and has set standards for other HAPs that account for far less than 90 percent of aggregate emissions.  Moreover, the Sierra Club asserted that the determination was a legislative rulemaking subject to notice-and-comment requirements that the Agency failed to meet.  Only by opening the determination to notice-and-comment could the Sierra Club make its case directly to the EPA as to why the Agency’s conclusion that it has met the deadline for all types of HAPs is erroneous. 

Standing and timeliness

In its defense, the EPA claimed that the Sierra Club lacked standing and that the suit was not brought against the Agency in a timely manner.  The court also noted that there was a “question” about whether the determination was a final Agency action.  The D.C. Circuit ruled as follows:

  • Standing.  The EPA attempted to undermine the Sierra Club’s allegation that its members were harmed by the NESHAPs by arguing that there was no basis to believe that the standards would be any more protective of human health if the Agency completed them as specified in the petition.  The D.C. Circuit rejected this argument by stating that the Sierra Club did not have to prove that the health of its members would benefit from the EPA completing NESHAPs to substantiate the contention that the standards needed to be revisited.
  • Timeliness.  The EPA said the Sierra Club was using the suit as a backdoor for attacking long-past rulemakings.  The Sierra Club claimed that with the determination, the EPA is unlawfully shoehorning previous rulemakings into the service of its argument that it had completed its NESHAP obligations.  The D.C. Circuit sided with the petitioners, explaining that the Sierra Club could not bring its suit until after the EPA identified the rules the Agency said satisfied its statutory obligations.
  • Finality.  Neither party disputed that the determination was a final decision for the purposes of the APA.  The court nonetheless reviewed the issue and found that “with unusual clarity,” the whole purpose of the determination is to “bring down the curtain” on the relevant NESHAP requirements and close off any legal claim that it has fallen short of compliance with those obligations.

Merits not addressed

Based on the above findings, the D.C. Circuit concluded that the determination constitutes a legislative rulemaking that cannot be issued without first being subject to notice-and-comment requirements as specified by the APA.  Accordingly, the court vacated EPA’s determination and ordered the Agency to fulfill its notice-and-comment obligations. 

“We do not reach Sierra Club’s arguments on the substance of the Determination or express the slightest opinion as to their merit,” the panel added.

Click here to read the D.C. Circuit’s opinion in Sierra Club v. EPA .

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