By Kevin McCarty

On May 14, the Court of Appeals for the District of Columbia Circuit stuck down U.S. EPA’s 1997 air standards on ozone and particulate matter.

On a 2-1 opinion, the Court held that the Act (i.e. Clean Air Act), as applied and absent further clarification, is unconstitutional and "effects an unconstitutional delegation of legislative power" to EPA.

The challenge to the 1997 standards, which were first proposed in November 1996 and finalized in July 1997, was brought by the American Trucking Associations, with support from other parties.

The practical effect of this decision is to invalidate the standards for now, with the U.S. Department of Justice now considering the government’s legal options to reinstate the standards. U.S. EPA has already asked the Justice Department to appeal the decision.

In reaching its decision, the Court was not persuaded by more than a half century of Supreme Court law dating back to 1935, where decisions have generally provided federal agencies with more latitude in acting under federal statutes. But this case is animated by the fact that Congress specifically set forth classifications for ozone non-attainment in the Clean Air Act, legislative directives which were essentially modified with the new standards.

In handing down its decision, the Court has left the new 8-hour standard in place, but has stated that the new standard "cannot be enforced." The decision also leaves open the status of whether the fine particle (PM 2.5) should remain in place.

The agency is expected to proceed with designation of areas under the new 8-hour standard, as set forth in its implementing guidance established after July 1997, even though the standard can’t be enforced in the aftermath of this decision.

Despite this setback on the new standards, the decision upholds key elements of EPA’s actions in promulgating the standards. For example, it rejected claims that EPA must consider costs in setting national air quality standards. It also did not question the process or science employed in setting the standards.

The Membership of the Conference during action at its Annual Meeting in San Francisco in 1997, just a few days before the standards were promulgated, put the nation’s mayors on record in opposition to the new standards.

On May 25, the same court handed downed another opinion in a separate case, ordering a partial stay of EPA’s plan to implement new requirements reducing state-to-state transport of smog, a program known as the NOx SIP call.