New York v. EPA: State Response to a Federal Regulatory Rollback

Roberts, Casey
August 2006
Ecology Law Quarterly;2006, Vol. 33 Issue 3, p613
Academic Journal
In New York v. Environmental Protection Agency, the D.C. Circuit upheld most of EPA's changes to the Clean Air Act's New Source Review program. Despite widespread public criticism that the new rule would make it easier for existing sources to avoid installing pollution control technology when they make modifications, the D.C. Circuit deterred to EPA's judgment that the new rule would have compensating environmental benefits. However the court did vacate the rule's Clean Units and Pollution Control Projects provisions, and remanded to the agency to provide a more reasoned explanation of how less stringent reporting requirements would not undermine EPA enforcement practices. The court also deferred two potentially critical questions as unripe: whether EPA can compel states to adopt the new rules and whether EPA's approval of state implementation plans containing the new rules would violate the Clean Air Act's anti-backsliding provisions. After examining the court's entire decision, this Note will focus on these two deferrals and argue that they were prudent given the very detailed factual records necessary to decide these claims. By leaving these claims unsettled, the decision allows for further analysis of the new rule's environmental and health effects-analysis that might improve the rule's clarity, practicability, and environmental sustainability.


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