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Wednesday, July 08, 2009

Environment - "Court Upholds EPA 'Nonattainment' Designations for Soot" [Updated]

That is the headline to this story this afternoon by Robin Bravender of the NY Times. H

Here is the 56-page opinion in Catawba County, N.Car. v, EPA. Indiana was a party.

From the story:

A federal appeals court yesterday upheld nearly all U.S. EPA designations of areas where airborne soot concentrations exceed national standards, rejecting challenges from state and local governments and industry groups.

The U.S. Circuit Court of Appeals for the District of Columbia yesterday rejected nearly every challenge from nine cities and counties, 10 power-industry groups and three states -- New York, West Virginia and Indiana -- upholding EPA's 2005 designations of nonattainment for fine particulate matter, or soot.

The agency in 2005 listed 225 U.S. counties (pdf) as violating the 1997 federal PM 2.5 standards.

State and local governments and industry groups filed legal challenges against the agency's designations. They argued that EPA had illegally bypassed notice and comment for policies guiding the designations and challenged EPA's authority to define nonattainment areas as broad metropolitan regions. Petitioners also said the agency's designation rule was arbitrary and capricious and requested that the court vacate certain designations.

But the three-judge panel rejected the petitioner's procedural challenges and upheld the agency's designation of all but one of counties.

The court's decision means counties must continue to comply with the Clean Air Act's requirements for nonattainment areas, which includes restrictions on construction or modification of major emitting facilities, large factories and power plants, and other pollution-control requirements, Earthjustice attorney David Baron said.

[Updated 7/10/09] See this entry today by Jonathan Adler at The Volokh Conspriacy., remarking that Catawba County is one of the rare cases where a challenged "air pollution control decision made by the EPA under the Bush Administration has [not] been invalidated,"

Posted by Marcia Oddi on July 8, 2009 02:12 PM
Posted to Environment