AIR POLLUTION:

Appeals court warms to EPA's revised 'hot spot' rule

Federal judges considering a challenge to a U.S. EPA rule that regulates emissions from new transportation projects appeared supportive today of the agency's legal position.

All three judges on the U.S. Court of Appeals for the District of Columbia Circuit panel expressed skepticism about the arguments made by the Natural Resources Defense Council and other environmental groups about EPA's "hot spot" rule.

The rule allows the construction of new transportation projects as long as developers undertake efforts to offset additional emissions.

EPA was forced to reconsider the language of the original 2006 rule after the same court invalidated it in a 2007 ruling (Greenwire, Dec. 12, 2010).

But environmental groups did not like the new version either, saying that -- like the 2006 rule -- it unlawfully allowed projects to go ahead even if they violated state air quality implementation plans.

EPA's view is that the analysis of emissions generated by a new transportation project should be limited only to the additional emissions caused by, for example, new lanes added to a highway.

NRDC counters that, under the Clean Air Act, all the emissions -- including those that were already present -- should be taken into account when calculating whether the project will delay attainment of state air quality standards.

But at today's oral argument, the judges appeared baffled by that interpretation.

"I honestly don't understand what that means," said Judge Harry Edwards when the environmental groups' lawyer, Robert Yuhnke, was explaining his position.

Edwards pointed out that in many instances the existing transportation project might already be out of compliance with air quality standards.

EPA "can't be held responsible for what was already a mess," he added.

Judge Douglas Ginsburg shared that view, noting that the emissions created by a highway before new lanes are added "would occur whether they build the extra lanes or not."

The third member of the panel, Judge Stephen Williams, also seemed hung up on that point, noting that there would be a delay in reaching the air quality standards in such a situation "regardless of the project."

Williams did, however, give some hope to NRDC when he noted that there could be some "ambiguity or contradiction" in how EPA had interpreted the statute, although he conceded that it would only be a problem in an extreme case.

EPA's Justice Department lawyer, David Kaplan, said that if ever such an occasion arose, the correct process would be to petition the agency.

Yuhnke made some headway when he noted that if a new project consisted of a realigned highway through a different neighborhood, then all the emissions, including those of the original highway, would have to be taken into account.

"It doesn't make sense," he said, that a project in which lanes are added to an existing highway should be treated differently.

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