EPA must establish NAAQS that protect public health with
"an adequate margin of safety." For that reason, it
is appropriate for EPA to establish standards
below levels at which studies have
shown harm to occur. EPA may not cherry-pick data, but as long
as it provides a reasoned explanation for why it has relied on some
studies and not others, the courts will not consider EPA to be
cherry-picking and will defer to EPA's
expertise. Consultation with the Clean Air Scientific Advisory
Committee is important and promulgation of a standard consistent
with CASAC recommendations is probably necessary and sufficient to
insulate the rule from adverse judicial review.
I think I could write this opinion in my sleep at this point and
I'm not sure much more than the paragraph above is
necessary. I suspect that Judges Sentelle and Ginsburg feel
the same way.
At a practical level, the most important part of the opinion did
not relate to the standard; it was the court's decision to
dismiss as premature challenges to EPA's stated intention to
measure compliance with the standard through a "hybrid
analytic approach" that includes modeling as well as air
monitoring. I know that the Sierra Club and other
environmental groups are already asserting to state agencies that,
based on modeling, coal-fired power plants are causing exceedances
of the new NAAQS, so this is an important issue.
The Court found that, because EPA's statement was only in
the preamble to the rule and did not impose "definite
requirements upon states or regulated industries", it was not
final action subject to review. Stay tuned on this
issue. Once EPA finalizes a rule – or guidance
functioning as a rule – there will be renewed judicial
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