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The Week Ahead

High Court Slated To Weigh Suits On EPA's NAAQS; EPA Poised To Issue RICE Rule

Posted: January 14, 2013

The Supreme Court is slated to consider whether the justices will review one of two pending cases challenging EPA's recently issued national ambient air quality standards. And an appellate court is scheduled to hear arguments in a case challenging EPA's decision to grant conditional approval to two pesticides containing nanoscale ingredients.

The agency is also slated to issue a long-awaited final rule updating emission requirements for widely used diesel generators.

In Court

The high court is expected to meet Jan. 18 to consider whether to review ASARCO, LLC., v. EPA, in which the smelting industry is seeking to overturn the agency's sulfur dioxide (SO2) national ambient air quality standard (NAAQS) for being too stringent.

The industry is seeking to overturn an appellate ruling, National Environmental Development Association's Clean Air Project, et al. v. EPA, which backed EPA's scientific justification for setting its June 2010 standard at 75 parts per billion (ppb), averaged over one hour, a limit that is stricter than the previous 24-hour limit of 140 ppb and annual standard of 30 ppb. The appellate court also dismissed suits over EPA's plans for implementing the standard, saying they are not final action subject to judicial review.

In briefs supporting their cert petition, industry says EPA's standard is unnecessarily strict and at odds with a Clean Air Act mandate to set NAAQS in a range “requisite” to protect public health with an adequate margin of safety. But in a response filed late last month, EPA urged the court to decline review, saying it enjoys discretion to interpret the relevant science.

Continued consideration of the SO2 NAAQS comes as the American Petroleum Institute (API) is urging the justices to also review an appellate ruling that upheld EPA's nitrogen dioxide standard. The group filed a Dec. 21 cert petition arguing that if the appellate ruling stands, it will grant EPA nearly limitless power to set ever more stringent air quality standards based on “hypothetical” threats to public health. EPA has already urged the justices to deny cert.

In addition to the two pending cert petitions, the high court is slated to hear arguments in two cases this week that could have a significant bearing on environmental policy.

In City of Arlington, et al. v. Federal Communications Commission (FCC), et al. , which is scheduled to come before the court for Jan. 16, the justices will weigh how much deference courts should grant agencies when they interpret the scope of their statutory authority -- a question on which the Supreme Court has not ruled despite an apparent split in the appellate courts. While the case focuses on whether federal communications law grants the FCC jurisdiction over local zoning decisions, industry groups say a favorable ruling for the petitioners would rein in EPA's controversial efforts to define the scope of the Clean Water Act (CWA) through guidance or rulemaking

The high court is also slated to hear oral arguments Jan. 15 in Koontz Jr. v. St. Johns River Water Management District, a takings case which tests when the government is required to compensate property owners for land use restrictions. Property rights advocates are urging the court to declare that past high court rulings barring unconstitutional regulatory "takings" apply to government demands for real and personal property, including money, and that it does not matter whether the demand is made before or after an environmental permit is issued.

The high court has also recently agreed to hear two environment-related cases that test the application of the Commerce Clause, though the cases have not yet ben briefed.

Over objections from EPA and environmentalists, the court Jan. 11 agreed to review local governments' power under the Commerce Clause to restrict the types of trucks that can enter a port in order to protect air quality.

The court has previously granted cert in Tarrant Regional Water District v. Herrmann, et al., a water rights case that could test how explicit Congress must be when it gives states authority to protect residents' water rights at the expense of other states' access to surface waters.

In other litigation, the U. S. Court of Appeals for the 9th Circuit is slated to hear arguments Jan. 15 in one of the first cases to test EPA's policy toward nanoscale materials. A three-judge panel is slated to question lawyers in Natural Resources Defense Council v. EPA, a case that challenges EPA's recent conditional registration for a nanosilver pesticide that is used to make antimicrobial textiles.

The petitioner is arguing that the agency lacks the health and safety data needed to allow the material in commerce and is using it as a test case to bring greater attention to alleged flaws with conditional pesticide registrations.

EPA and the registrant are urging the court to dismiss the case, saying the environmentalists lack standing and fail on the merits.

Since the case was first filed, though, EPA has launched a broader program to assess the risks of nanoscale pesticide ingredients, though industry groupssay the agency's methodology overstates some particles' size and thus could lead the agency to arbitrarily select some products for review. They say this is potentially unlawful because selected registrants would face an unfair burden of having to provide additional data for the review.


EPA is slated Jan. 14 to sign its long-awaited rule updating emission requirements for reciprocating internal combustion engines (RICE), the diesel backup generators that industrial facilities, hospitals, water, sewage and other large plants use to respond to grid emergencies or to reduce electricity costs in high-demand periods.

Facilities can either activate the engines or they can use them as part of their demand-response programs as a way to reduce higher-cost electricity consumption from the grid.

A proposed version of the rule that EPA issued last year expanded from 15 to 100 hours the period that diesel generators can operate under demand response programs without having to meet the rule's air pollution limits.

But environmentalists and states are urging the agency to drop the expanded demand-response waiver, saying it will do little to reduce emissions.