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Yesterday, in
American Petroleum Institute v. EPA, the D.C. Circuit Court of
Appeals affirmed EPA's revisions to the National Ambient Air
Quality Standard for NOx. The revisions adopted,
for the first time, an hourly NAAQS for NOx, in addition to the
annual standard.
API made a number of assertions that EPA had been arbitrary and
capricious in its review of the scientific evidence concerning
potential short-term impacts. The most important were
EPA's reliance, in part, on a study which had not been the
subject of peer review, and EPA's alleged failure to consider a
study suggesting that short-term impacts had not been
demonstrated.
The Court rejected both complaints. With respect to the
first, API asserted that EPA violated its own requirements when it
relied on an internal analysis that had not been
peer-reviewed. The Court's response was short, but
certainly not sweet:
Perhaps the API should have had its brief
peer-reviewed. In quoting the EPA's
Review Plan, the API omits the first and most relevant word of the
following sentence: "Generally, only information that has
undergone scientific peer review ... will be
considered." Of course, "generally" here
indicates the practice in question will not invariably be
followed. A bad start for the petitioners.
To which I can only say, ouch. Significantly, the Court
noted that EPA did have its internal analysis
reviewed by the Clean Air Scientific Advisory Committee, and it
stated that review by CASAC qualifies as peer review.
Regarding the second claim, the Court concluded that EPA
had considered the skeptical study.
Moreover, EPA gave reasons why it rejected the conclusions of the
study. This was enough for the Court.
I have previously pointed out that the Court's review of
EPA's NAAQS in recent years has pretty much made the CASAC the
final arbiter of the validity of EPA NAAQS promulgations. If
EPA's decision is supported by CASAC's review –
as it was here – EPA's NAAQS will be
affirmed. If, on the other hand, as was
the case with EPA's PM
2.5
NAAQS, EPA promulgates an NAAQS that ignores CASAC advice,
EPA's standard is not likely to survive judicial review.
Yesterday's decision only confirms this analysis. CASAC
did not merely review the one paper that API had challenged; it
proposed a short-term standard that was similar to and certainly
consistent with the standard that EPA ultimately
adopted. I'm not sure that Congress meant to delegate to
CASAC the determination whether NAAQS adopted by EPA are arbitrary
and capricious, but I think that that is where we are today.
To which API can only say, ouch.
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