Federal Court Tosses Challenge to EPA Transportation Air Quality Guidance

Published November 28, 2017

A three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the Sierra Club and several Denver-area community groups challenging U.S. Environmental Protection Agency’s (EPA) decision to modify its “hot-spot” guidance determining when transportation projects might violate air quality standards.

The guidance describes various methods for calculating whether a transportation project will not cause or contribute to violations of federal air quality standards for coarse and small particulates, known as PM10 or the PM2.5 respectively, in areas currently out of compliance with federal standards. EPA modified its “hot spot” guidance in 2015, making it less likely a project would be found in violation of air quality standards.

Sierra Club and the Denver-area community groups challenged the modified guidance saying EPA failed to take legally required public comments on its changes as required under the 1970 Clean Air Act and the 1946 Administrative Procedures Act (APA).

Petitioner’s Lacked Legal Standing

The court unanimously determined the lawsuit had two fatal procedural defects preventing it from addressing the substantive issues raised in the lawsuit.

Writing the decision for the panel by Senior Judge Stephen Williams found the Sierra Club couldn’t show its members suffered any adverse effect from EPA’s changed guidance on fine particulate matter, and thus had no legal standing to challenge it.

Two of the three highway projects the petitioners said would be affected by the change in the PM2.5 guidelines, in Arizona, California, and Colorado — the ones in Colorado and Arizona — are not located in nonattainment areas for PM2.5 meaning they do not fall under the guidance; concerning the third project, the petitioners failed to show the change in guidance would make any difference to air quality or to EPA’s approval of the project.

Concerning the PM10 challenge, Williams wrote because EPA’s guidelines are not legally binding, they did not constitute a “final action” that could be challenged in court.

“For want of jurisdiction we do not reach the substance of either the APA or the Clean Air Act arguments,” Williams concluded in throwing out the lawsuit.

H. Sterling Burnett, Ph.D. ([email protected]) is the managing editor of Environment & Climate News.