When must EPA set ambient air quality standards? Looking back at NRDC v. Train.

• Author: Oren, Craig N.

1. THE ORIGINS OF NRDC v. TRAIN II. THE NRDC LITIGATION AND OPINION III. THE AFTERMATH A. Setting the Ambient Standard for Lead B. Implementation of the Ambient Air Quality Standards C. Did the Standard Accomplish the Goals of NRDC? IV. CONCLUSION At our conference at UCLA on the Clean Air Act and climate change in April 2011, Kassie Siegel of the Center for Biological Diversity described what she thought could be accomplished if the United States Environmental Protection Agency (EPA) were to set national ambient air quality standards for greenhouse gases under the Clean Air Act (Act). (1) These standards, she explained, would establish a target concentration of greenhouse gases in the outside atmosphere we breathe (e.g., 350 parts of carbon dioxide per cubic meter of air). (2) States would then prepare State Implementation Plans (SIPs) that would detail the steps they would take to meet those standards, such as establishing controls on major sources like power plants or altering land use laws and management to decrease reliance on the single-occupancy motor vehicle. (3)

   As I have explained elsewhere, there are many disadvantages to setting ambient air quality standards for greenhouse gases. (4) For example, the ambient standard system would take a long time--roughly ten years--to be put into place. There would be controversy and room for litigation about the exact level at which the standard should be set, a question over which there is already a great deal of debate. Once set, the standard would doubtless be challenged in court, further delaying implementation. SIPs would likewise be subject to administrative and legal challenges. One nationally-known expert on the Act, now a lawyer in private practice, has told me that if he were being paid to hinder regulation of greenhouse gases, he would want EPA to go down the ambient standard path. (5)

   The difficulties of setting ambient air quality standards for greenhouse gases would be justifiable--just as ambient standards are for other important air pollutants--if the standards could be effectively implemented. But this is not the case. Ironically, both the Act's stringency and laxity play a role. Presumably, EPA would set both health-based and welfare-based ambient air quality standards (primary and secondary standards, respectively) because it has found that greenhouse gases endanger both health and welfare. (6) Under the Act, states must demonstrate that nonattainment areas meet health-based standards within ten years after being designated as nonattainment. (7) But decreasing concentrations of greenhouse gases takes much longer because some greenhouse gases, such as carbon dioxide, stay in the atmosphere for prolonged periods and even centuries. (8) The consequence is that EPA would either have to approve plans that it knows will not meet the standard or demand plans with draconian measures that still might not be effective. In addition, the ten-year period for attainment would focus direction on short-term steps, such as energy efficiency initiatives, and not on long-term measures, such as altering land use policies, which might prove more effective over time.

   The environmental community could possibly agree to ignore the ten-year deadline, although maintaining such an agreement among the large number of potential challengers to EPA would not be easy. But there is little that the community can do to cope with the other obstacle: section 179B of the Act. (9) This provision--inserted at the behest of Texas Senator Phil Gramm in 1990 as solace to El Paso, which is near the Mexican city of Juarez (10)--requires EPA to approve a state plan if it would show attainment but for emissions emanating from outside of the United States. Thus, because foreign nations emit three-quarters of all greenhouse gases, a state could gain approval of a plan that would not do much to reduce emissions. (11)

   Therefore, setting and enforcing ambient air quality standards is likely to be a tail-chasing process that would gain little. Still, some have argued that under the statute EPA has a duty to go down this road. (12) While Ms. Siegel did not bring up this argument in urging the ambient air quality standard approach, her organization has asserted that EPA has a legal obligation to do so. (13) I have sketched before why I believe EPA is under no such obligation. For instance, I have tried to refute the theory of one scholar that the relevant statutory provision contains a scrivener's error and in fact imposes on EPA a duty to follow the ambient standard approach. (14)

   I want to take a different route here. I will look at Natural Resources Defense Council v. Train (NRDC), (15) the case authority for claiming such a duty. As I shall show, NRDC is a questionable decision that does violence to the language of the Act and makes dubious use of its legislative history. Furthermore, the subsequent history of the lead ambient air quality standard indicates that it was a limited tool for reducing lead emissions. Perhaps that carries some lessons for regulating greenhouse gases. So I begin by discussing NRDC and its background, and then turn to the results of the NRDC decision.

1. THE ORIGINS OF NRDC v. TRAIN

   NRDC took up the question of whether EPA was required to set ambient standards for lead. The regulation of this pollutant has a long history; indeed, the saga continues to this day. (16)

   Lead has had many uses (I recall my father, an electrical engineer, using lead solder around the home to repair TVs and radios), including as a constituent of paint. Lead paint can still be found in older homes, and children are often exposed to lead by eating the sweet paint chips. (17) Lead was also used in water supply lines for many years, entering tap water as the line corrodes. (18) Its primary use for many years was as a constituent of tetraethyl lead, which was used as a gasoline additive to increase the fuel's octane and permit higher-compression engines that would eliminate engine knock (19) (i.e., the tendency of the air/fuel mixture in the cylinder to combust prematurely, thus damaging the engine and hindering performance). (20) Adding tetraethyl lead to gasoline resulted in large emissions into the atmosphere--200,000 tons per year in the early 1970s (21)--and accounted for over ninety percent of the lead in the air. (22) This lead eventually fell to earth and was consumed by young children putting soil in their mouths; thus, children were indirectly as well as directly exposed to lead emissions. (23)

   Not long after lead's introduction into gasoline in the 1920s, concerns arose that lead might interfere with the synthesis of hemoglobin, which carries oxygen through the blood stream, and thus pose a danger to young children's health. (24) A separate concern about lead arose because vehicle manufacturers wanted to use catalytic converters to meet Congress's demands for a sharp reduction in automobile emissions. Lead poisons these converters, thus making it impossible to adequately control vehicular emissions of such important pollutants as hydrocarbons and carbon monoxide. (25)

   Congress, in the Clean Air Act Amendments of 1970, took a dual approach to lead, authorizing EPA to regulate or prohibit a fuel additive if it would either (a) impair pollution control equipment on motor vehicles or (b) itself harm health. (26) EPA took this provision seriously: less than a month after the signing of the Clean Air Act Amendments of 1970, the new agency issued an advance notice of proposed rulemaking announcing that it would make rules to carry out both halves of Congress's authorization. (27)

   But the two halves became separated. The agency acted with reasonable alacrity on the first part of this provision, requiring that all gasoline service stations offer unleaded gasoline and that cars equipped with catalytic converters be designed to accept only unleaded gasoline. (28) This rule meant that lead, in the long run, was dead as a gasoline additive because the auto manufacturers planned to use catalytic converters to control emissions. (29) Indeed, new motor vehicles continue to use these converters.

   The issue then became what would happen during the transition. This was of great importance not only to the lead additive industry but also to the petroleum industry because pipes and other distribution facilities contained large amounts of lead that had accumulated from the transport of leaded gasoline. (30) The regulations that would apply during lead's phase-out would thus make a considerable difference to industry's regulatory burden. In addition, there was great controversy about whether low levels of lead were indeed a health threat. Finally, lowering the amount of lead in leaded gasoline would require that more crude oil be used to produce gasoline, a special concern in 1973 when the Arab nations established an oil embargo on the United States. (31)

   Thus, there was considerable resistance to EPA also acting to restrict the amount of lead in leaded gasoline, thereby stalling agency action. (32) The Natural Resources Defense Council (NRDC) responded by suing EPA on the theory that EPA had unreasonably delayed regulating lead on health grounds. (33) This resulted in a thirty-day deadline for a decision no later than December 3, 1973. (34) EPA, after a sharp battle with other federal agencies--none of which supported EPA--and the Nixon-era Office of Management and Budget, made at least two last-minute relaxing changes and barely promulgated the regulations in time to meet the deadline. (35)

   The regulations, known as the lead phase-down rules, were struck down the following year by a D.C. Circuit panel that thought EPA had not amassed enough evidence of the ill effects of lead in gasoline. (36) This decision was reversed by the circuit court sitting en banc, which concluded, by the narrowest of margins, that EPA had indeed made a sufficient case. (37) That decision, penned by Judge Skelly...