Prevention of Significant Deterioration: A Scalpel, Not an Axe

• Date: 01 April 2018

48 ELR 10288 ENVIRONMENTAL LAW REPORTER 4-2018

C O M M E N T S

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.

Oren,

, 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.

4. 42 U.S.C. §§7401-7671q.

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®, http://www.eli.org, 1-800-433-5120.