Three Interesting Things About The New Source Review Decision

The DC Circuit’s invalidation of EPA’s Clean Air Act regulations exempting certain equipment replacements from the new source review process led the Times last weekend, and one look at the number of lawyers who participated in the appeal tells you that a lot of parties thought the case was important. What happened and why should you care?

Very roughly, if you build a new source of air pollution, you have to get a permit to pollute – this is the so-called new source review process. However, if you’re replacing equipment on an old pollution source, you may be able to avoid new source review – or so thought EPA, which passed a rule providing that “the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change” triggering new source review. The court held that EPA’s reg was inconsistent with the plain language of the CAA, which, it held, requires new source review upon any modification of the old source that increases pollution. As the court held, “Congress defined ‘modification’ in terms of emission increases, but” EPA’s proposed reg “would allow equipment replacements resulting in non-de minimis emission increases to avoid” the permitting process.

1. This panel included Judge Janice Rogers Brown, the controversial and only recently confirmed libertarian. Perhaps Brown’s hostility to regulators in general explained her hostility to this business friendly interpretation of a congressional directive … but perhaps also this was an easy textual case, or she was persuaded by the brilliant judge who wrote the opinion, Judith Rogers (a judge who has, in the past, hired some law clerks I greatly admire).

2. As is often the case these days, the lineup was states + environmental groups v. federal regulators + industry. I’ve been impressed for a while by the number of legal foot soldiers that environmental groups have gotten out of state attorney general offices.

3. The Times notes that the arena of Clean Air Act combat has shifted from Congress, which wrote an incredibly detailed and quite constraining statute (a very different statute than those with New Deal era broad grants of regulatory authority) to EPA and the courts, who are interpreting that statute in a context where legislative review is unlikely – “there has been no real movement in that direction in recent years.”

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2 Responses

  1. Scott Moss says:

    I’m not sure if this makes me an idealist or a cynic, but my hunch is that this was an easy textualist call for Judge Brown (and her panel-mates). I think the Bush administration has been repeatedly going quite far in asserting questionable statutory authority to implement its policies, including in the Gonzales v. Oregon case, the NSA wiretapping not-yet-a-case, and this case. When the administration does that, it can’t count on support from notionally “conservative” judges who stick to their guns on (a) textualism and (b) the limited-government theory (akin to the dead old “non-delegation doctrine”) of construing narrowly any asserted statutory authority for executive policy-making.

  2. David Zaring says:

    You can certainly read the opinion for support of that view, which is pretty classic Chevron step 1 analysis.