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Air Quality Standards Deterred AgainPosted 12/9/1999By Robert L. Redding, Jr.
The District of Columbia Circuit Court of Appeals has denied the U.S. Environmental Protection Agency's request to reconsider the court's ruling last May that blocked the EPA's new air quality standards for ozone and particulate matter. The request to reconsider the ruling was the next step for the EPA. The May 14 ruling was a product of a three-judge panel. This rehearing was by the full 11-judge panel and the EPA's position was denied by a margin of one vote. Last May the court focused on the relationship of Congress to the EPA. Specifically, the court stated, "We find that the construction of the Clean Air Act on which EPA relied in promulgating the standards at issue here effects an unconstitutional delegation of legislative power." The EPA had argued at that time that the court did not question the science but the agency's contention that the rule's justification comes from the "primary public health provisions" of the law. Prior to the May 14 decision, several members of Congress had pursued a legal remedy based on the science issues involved in the ozone and particulate matter regulation. During the congressional hearing process and in legal arguments, congressmen questioned the EPA's scientific justification for the new air quality standard. In September of this year, EPA officials went before Congress to explain the impact of the court's decision. This followed a lengthy outline sent to members of Congress detailing the EPA's position. During the hearing, Robert Perciasepe, EPA assistant administrator for air and radiation, said the "decision, a significant departure from well-established case law, carries with it dangerous implications for not only the new public health air quality standards, but also for many other federal laws or rules enacted to protect the health of the American people." After the May 14 decision, the EPA asked the U.S. Justice Department to review options for the agency in light of the decision. The court did not rule on the EPA points that defined the scope of the agency's jurisdiction in setting the new standards. The court did not determine whether the ozone and particulate matter standards would or would not be set aside at some point in the future. The industry would be taxed with proving that the standards are of "imminent harm." Inside EPA reported that "In addition, in a victory for industry, the ruling leaves intact the original decision's call for the agency to consider beneficial health effects from ozone when setting health standards." Although EPA officials did not agree with the outcome, they were encouraged by the number and quality of dissents. The EPA felt there was recognition of the legality of the Clean Air Act and its public value. Aftermarket repairers were divided originally as to the impact of the new ozone and particulate matter regulations. Some repairers felt that states were already pressed to meet current air quality goals and that any more restrictions would create a backlash to inspection and maintenance (I&M) programs as well as other industry initiatives. Part of this was based on the response to the original Clean Air Act Amendments and the first round of state air quality plans. Other repairers felt that in addition to improvements in air quality, the new regulations would improve the quality of some existing I&M programs as well as expand them into new geographic areas. Clearly the early maps for the latest regulations coming out of the EPA showed a broad coverage for the new air quality restrictions. The Automotive Service Association (ASA) has been concerned in the past few years about the lack of emphasis on new I&M programs or advocacy efforts supporting existing programs. EPA Administrator Carol Browner was clear in testimony before a U.S. Senate committee about the EPA's intention to continue its advocacy of I&M programs. But the EPA has had a difficult period since the implementation of the Clean Air Act Amendments defending assaults on I&M. Beginning with the California state implementation plan (SIP) and continuing through many state and even federal court challenges in Virginia, it has been an expensive and time-consuming process. ASA is concerned that these programs receive the proper attention, commitment and advocacy they deserve. These programs directly impact air quality. From the aftermarket's perspective, they put vehicles in repair shops and heighten the purchase of parts, thus increasing production for aftermarket manufacturers. No other federal or state programs impact mechanical repairers to the degree of I&M programs. Unfortunately, safety I&M programs have suffered from the backlash of emissions I&M. State safety I&M programs continue in a downward spiral with programs under attack each year. In the past few years, Missouri and North Carolina programs have been under attack. The unpopularity of the programs has pushed the National Highway Traffic and Safety Administration (NHTSA) to the point of not taking a public leadership position on I&M. If the aftermarket is not careful, the EPA could be put in the same position. It is imperative that the EPA has the tools necessary to enforce a broad-based, effective emissions I&M program. As the EPA prepares its next move on ozone and particulate matter regulations, quite possibly an appeal to the U.S. Supreme Court, the aftermarket should consider the ramifications of I&M remaining at its current national level (or quite possibly diminishing) vs. a broad-based, effective national program.
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