Prevention of Significant Deterioration: A Case for Repeal

• Date: 01 September 2017
• Author: John C. Evans and Donald van der Vaart

47 ELR 10742 ENVIRONMENTAL LAW REPORTER 9-2017

C O M M E N T

Prevention of Signif‌icant

Deterioration: A Case for Repeal

by John C. Evans and Donald van der Vaart

John C. Evans, J.D., currently works for the North Carolina Division of Air Quality. He previously served as the North

Carolina Department of Environmental Quality’s General Counsel and Chief Deputy Secretary. He also served in the North

Carolina Attorney General’s oce, litigating federal air quality regulations. Donald R. van der Vaart, P.E., Ph.D., J.D.,

currently works for the North Carolina Division of Air Quality. He previously served as the Secretary for the North Carolina

Department of Environmental Quality and has worked as an engineer in industry, academic, and government capacities.

I did not attend the funera l, but I sent a nice letter saying

I approved of it.

—Mark Twain (attributed)

e Prevention of Signicant Deterioration (PSD) pro-

gram was born 45 years ago from purposivist interpretation

of the platitudinal phrase “protect and enhance” contained

in the “ndings and purposes” section of t he 1970 Clean

Air Act (CAA). e PSD program has since metastasized

into big business, supporting scores of consultants, tech-

nical experts, and lawyers.1 e Donald Trump Admin-

istration’s push for regulatory reform has yet aga in raised

calls for cha nges to the PSD program. Past reforms have

provided some benet but increased the complexity of an

already byzantine program.

Rather than reforming the progra m, a strong case can be

made that the program has been rendered environmentally

nugatory by the dramatic growth of the regulatory state

over the past 45 yea rs, and therefore should be repealed.

By any objective measure, each of the elements of the PSD

program has been superseded by literally hundreds of regu-

lations reaching every aspect of a major stationary source’s

construction and operation. W hat remains of the PSD

program is little more than a litigation battleeld where

the outcome is always the same—delay and ultimately no

environmental benet.

is Comment evaluates the four major elements of the

PSD program in the context of today’s regulatory state.

Far from the critical environmental program it once was

described as, even its actual role in limiting economic dis-

locations has been superseded by rules that have targeted

the very gra ndfathered sources the PSD program was

1. is Comment is limited to an analysis of the PSD portion of the New

Source Review provisions (i.e., 42 U.S.C. §§7470-7479; CAA §§160-169).

designed to protect. ose committed to protecting our

environment have an obligation to ensure that required

programs have a high environmental rate of return. Today,

the PSD program resource costs are high and the envi-

ronmental return is negligible. Repealing PSD and other

low-value programs conserves nite resources and leads to

greater public health and welfare protection.

I. Background of the PSD Program

Much has been written about the origins of the PSD per-

mitting program. e soon-to-be-released “New Source

Review (NSR) Ma nual” provides a n excellent history and

summary of the program’s origins and revisions to date.2

For purposes of this Comment, a condensed discussion is

provided here.

e PSD program’s genesis can be found in the 1973

 Club v. Ruckelshaus case where the court, perhaps

unknowingly, found a parade of elephants in a mousehole.3

Looking at the most generalized purpose of the CAA of

1970 and applying what can only be described as a purpo-

sivist statutory analysis, the court held that the platitudinal

CAA phrase “to protect and enhance the quality of the

Nation’s air resources” required a need for a new program.4

With few statutory or judicial guideposts, the U.S. Envi-

ronmental Protection Agency (EPA) set about developing a

set of PSD reg ulations. An acceptable response to the court

decision may have been a program built on the relatively

2. Air & Waste Management Association, , https://

www.awma.org/nsrmanual (last visited July 18, 2017).

3. 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972), , 4 ERC

1815, 2 ELR 20656 (D.C. Cir. 1972), 

nom. Fri v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973).

4. e goals and purpose of the statute are generally understood to explain

what is to be achieved by the substantive provisions that follow. e goals

and purposes are not obligations in themselves. e Ruckelshaus decision is

precisely the kind of purposivist interpretation warned against by a textualist

like Justice Antonin Scalia. One could argue that under the obligation

“protect and enhance,” there is no limiting authority under the CAA.



  



Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.