On December 23, 2014, the United States Circuit Court for the District of Columbia Circuit issued an opinion that may signal a trend towards a more interventionist court. This opinion could have far-reaching implications for the Environmental Protections Agency (EPA) and its ability to modify compliance standards based on practical considerations, as well as for those that they frequently regulate. In Natural Resources Defense Council v. EPA, No. 12-1321, 2014 WL 7269521, the D.C. Circuit addressed two challenges to EPA’s regulations implementing the more stringent ozone standards it imposed in 2008[GAMDE1] . Specifically, EPA allowed affected regions more time to attain the new ozone standards and revoked certain requirements, known as transportation conformity requirements, for areas that had yet to attain governing ozone standards or that had recently come into attainment but remained under obligations aimed to prevent any reversion to nonattainment status; the transportation conformity requirements obligate affected regions to assure that, if any proposed project to develop transportation infrastructure could potentially result in significantly increased emissions, the project will align with the maximum emissions levels established in EPA-approved plans for meeting air quality standards. A split panel ultimately ruled that EPA exceeded its authority under the Clean Air Act (CAA) in taking these actions.
Judge Srinivasan, writing for the majority, found that the attainment extensions could not be reconciled with the language of the CAA and therefore were impermissible. Judge Srinivasan also highlighted that EPA had previously concluded in 1997 that it did not have the authority to alter attainment deadlines. While EPA argued that, rather than changing the attainment period, it was merely delaying the commencement of the attainment period, the majority rejected the argument as essentially a roundabout way to achieve the same end. The panel also found that altering the transportation conformity requirements would “undercut” the CAA’s objectives.
In dissent, Judge Randolph expressed his opinion that the court should have deferred to EPA regarding when the attainment periods begin to run, because the CAA is silent on this issue and the Supreme Court in Whitman v. American Trucking Associations, 531 U.S. 457 (2001), acknowledged this timing gap and concluded that a reviewing court must defer to EPA’s reasonable resolution of the statutory uncertainty. Moreover, Judge Randolph noted that, even if EPA had taken a contrary stance in the past regarding its ability to alter attainment dates, this is not dispositive, as initial agency determinations are not “carved in stone.” In concluding, Judge Randolph raised his concerns regarding the effect of the majority’s decision:
A few final points. Notably absent from the majority opinion is any discussion of how exactly EPA and the States are expected to implement the majority’s decision. We do not know whether the majority intends that attainment deadlines set years ago must now be retroactively shortened as a result of court order. Still less do we know what sort of disarray this will cause throughout the country. And we do not know whether State and local transportation plans  approved and implemented, presumably after large effort and at great expense must be retroactively disapproved. These and other problems are bound to arise as a result of what I consider a mistake in judicial analysis.
The majority fails to address these concerns in its opinion, and we can only wait to see if they prove prescient. While EPA is often accused of imposing burdensome regulations on the States and private enterprises, this is a rare situation where EPA attempted to provide reasonable flexibility based on practical considerations but was thwarted by a court in order to ensure more stringent environmental standards were applied. With the appointment of four new members to the D.C. Circuit, including Judge Srinivasan, President Obama has changed this critical court’s ideological profile. Thus, it will be interesting to see if this is the beginning of a new trend for this court, or merely an aberrational blip.