EPA loses in court . . . again

Published March 1, 2000

For the third time in less than a year, the U.S. Environmental Protection Agency has had one of its air-quality regulations rejected by the District of Columbia Federal Appeals Court. The Court overturned a 1998 EPA regulation permitting areas to use reformulated gasoline (RFG) even if they were not specifically authorized to do so by the 1990 Clean Air Act.

The EPA loss came in a suit filed by the American Petroleum Institute and the National Petrochemical and Refiners Association, initiated when the Governors of Kansas and Missouri applied for permission to use RFG in the Kansas City area to relieve minor pollution problems not covered by the Clean Air Act. The plaintiffs expressed concern that expanding the use of RFG to areas not authorized by the act would strain supplies of the fuel, which is more costly than non-reformulated gasoline.

The Clean Air Act specified that areas could “opt in” to the RFG program if they were in one of four categories for non-compliance with clean air standards: marginal, moderate, serious, or severe. The Kansas City area fell into none of those categories.

“Congress provided for ‘opt in’ only for areas classified as marginal, moderate, serious, or severe,” the court concluded. “It meant what it said. If Congress makes an explicit provision for apples, oranges, and bananas, it is most unlikely to have meant grapefruit.”

In May of last year, the same court ruled EPA had violated the constitutional provision against non-delegation of legislative authority with its new rules on smog and particulate matter: in other words, EPA was making law, a power solely reserved to Congress. The court reaffirmed that decision in October.

Also in May, the court struck down EPA’s new mandates for tightening restrictions on nitrogen oxide emissions in 22 southern and Midwestern states. The agency is now seeking to circumvent the court’s ruling by applying the restrictions to fewer states. As of this writing, it is not clear whether this new approach will return the entire matter to court.