Prevention of Significant Deterioration: A Scalpel, Not an Axe

Date01 April 2018
Prevention of Signif‌icant
Deterioration: A Scalpel, Not an Axe
by Craig N. Oren
Craig N. Oren is a Professor at the Rutgers Law School.
Does the United States need the Clean Air Act’s
(CAA’s) Prevention of Signicant Deterioration
(PSD) program1 to guard against degradation of
air quality? In their recent Comment in these pages, John
C. Evans and Donald van der Vaart say no,2 but the right
answer is more nuanced.
Evans and van der Vaart see PSD as unneeded and a s
essentially a growth-control scheme designed to hinder
development in the Sun Belt region. I a rgue here that,
while the program is awed in some respects, PSD helps
to protect national parklands, guard against pollution “hot
spots,” a nd decrease air pollution emission levels in the
United States, thus helping to remedy regional pollution
problems. I also argue that current eorts to ease PSD per-
mitting requirements need to avoid undercutting the goals
of the program.
I. Background
e question of whether to have an antidegradation pro-
gram rst arose af ter enactment of the CAA A mendments
of 1970.3 e Amendments established the basic frame-
work of today’s CAA.4 ey authorized the U.S. Environ-
mental Protection Agency (EPA) to set national ambient
air quality standards (NAAQS) to protect public health
and welfare.5 e Act also directed states to prepare state
1. CAA, 42 U.S.C. §§7470-7479; ELR S. CAA §§160-169. Unless oth-
erwise stated, all statutory citations herein are to the CAA. For a longer
summary of the PSD program’s evolution and provisions, see Craig N.
, 74 I L. R. 1, 10-28 (1988). For a contemporary and more
detailed summary of the PSD program’s provisions, as well as the analogous
new source review program for dirty air areas, see Bernard F. Hawkins Jr. &
Mary Ellen Ternes, , in T C A A
H (Julie R. Domike & Alec C. Zacaroli eds., American Bar Ass’n
4th ed. 2016).
2. John C. Evans & Donald van der Vaart, -
, 47 ELR 10742 (Sept. 2017).
3. Pub. L. No. 91-604, 84 Stat. 1676.
5. Sections 108-109, 42 U.S.C. §§7408-7409.
implementation plans (SIPs) to show how the levels of the
standards would be attained and maintained.6
All those involved in implementing the Amendments
agreed that the SIPs had to show how dirty air areas (what
we now call nonattainment areas) would be cleaned and
kept clean, and that clean air areas (attainment areas)
would have to be kept from violating t he air qua lity stan-
dards in the future. But it was not clear whether the SIP
had to ensure that attainment areas maintain their existing
air quality, rather than just assure that they remain within
the air quality standards.
EPA initially decided that states had no obligation to
maintain existing air qua lity. But EPA’s ruling was over-
turned by the U.S. District Court for the District of
Columbia in Sierra Club v. Ruckelshaus.7 e court relied
on language, rst inserted into the CAA by the Air Quality
Act of 1967,8 stipulating that one purpose of the Act is to
“protect and enhance” air quality.9 e “protect” language,
according to the court, meant that EPA could approve a
SIP only if the SIP protected against degradation of supe-
rior air quality.10
Sierra Club was eventually armed without opinion by
the United States Court of Appeals for the D.C. Circuit
and, again without opinion, by an equally divided U.S.
Supreme Court.11 As a result, EPA wrote nondegradation
regulations.12 ese regulations were codied in altered
form in the CA A Amendments of 197713 as the PSD pro-
gram. EPA has published voluminous regulations imple-
menting the program.14
6. Section 110, 42 U.S.C. §7410.
7. 344 F. Supp. 253, 2 ELR 20262 (D.D.C. 1972).
8. Pub. L. No. 90-148, §1, 81 Stat. 485.
9. Section 101(b)(1), 42 U.S.C. §7401(b)(1).
10. Sierra Club, 344 F. Supp. at 256.
11. Sierra Club v. Ruckelshaus, 4 Env’t Rep. Cas. (BNA) 1815 (D.C. Cir.
1972), a’d by an equally divided court sub nom. Fri v. Sierra Club, 412 U.S.
541, 3 ELR 20684 (1973).
12. Implementation Plans: Prevention of Signicant Deterioration, 39 Fed.
Reg. 42510 (Dec. 5, 1974).
13. Pub. L. No. 95-95, §127, 91 Stat. 685, 731-42.
14. 40 C.F.R. §51.166 (2016) (requirements for states in adopting the PSD
program into their implementation plans); 40 C.F.R. §52.21 (2016) (al-
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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