The Ozone Saga

Baumhefner, Max
August 2008
Ecology Law Quarterly;2008, Vol. 35 Issue 3, p557
Academic Journal
South Coast Air Quality Management District v. EPA is emblematic of the EPA's failure to put in place air quality standards deemed necessary to protect public health over a decade ago. In a unanimous ruling, the D.C.. Circuit rejected the agency's 2004 rule meant to implement those standards because it largely ignored the Clean Air Act's strict regulation of ground level ozone, a pollutant that continues to exact unacceptable tolls on the environment, the economy, and public health. The result was not surprising. The D.C. Circuit had previously vacated a 1997 EPA rule that also employed a discretionary framework in place of the strict scheme called for by the Clean Air Act. On appeal, the Supreme Court disagreed that the exclusive use, of the strict regulatory approach was unambiguously mandated by the language of the statute, but affirmed that the EPA's neglect of the scheme was unreasonable. The Court remanded to the agency to produce a sensible rule. Despite the Court's emphasis on the singular importance of the strict approach, the EPA used the opportunity to craft a rule that once again attempted to largely avoid the congressional mandate. In South Coast, the D.C. Circuit predictably rejected this abuse of discretion. The language of the Clean Air Act prevailed, but only after regrettable and unnecessary delay.


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