Natural Resources Defense Council v. Environmental Protection Agency
409 U.S. App. D.C. 330
| D.C. Cir. | 2014Background
- Portland cement manufacturing releases hazardous air pollutants (mercury, HCl, hydrocarbons, particulate matter); EPA regulates under Clean Air Act §112 (MACT standards).
- EPA issued a 2010 Rule setting MACT floors and an affirmative defense for private citizen suits for violations caused by "unavoidable" malfunctions; the D.C. Circuit remanded the 2010 Rule for including commercial incinerators in the data set (Portland Cement Ass'n v. EPA).
- On remand EPA promulgated the 2013 Rule: it revised the particulate matter (PM) floor from 0.04 to 0.07 lb/ton of clinker (excluding commercial incinerators), declined to adopt 0.04 lb/ton as a beyond-the-floor standard based on cost-effectiveness, set a unified compliance date of September 2015, and retained the affirmative defense for private suits.
- Environmental groups (NRDC, Sierra Club, others) petitioned for review, challenging (1) that the 2013 PM standard unlawfully "diminished" prior standards (§112(d)(7)), (2) EPA’s consideration of cost-effectiveness when declining a beyond-the-floor PM standard, (3) the 2015 compliance date, and (4) the affirmative defense for private civil penalties.
- The D.C. Circuit upheld the emissions-related aspects of the 2013 Rule (PM floor, cost treatment, and compliance date) but held EPA exceeded its statutory authority by creating an affirmative defense to citizen enforcement actions and vacated that portion of the Rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2013 reduction in PM stringency violates §112(d)(7) (anti‑backsliding) | §112(d)(7) forbids any action that "diminishes or replaces" a more stringent §112 standard (2010 Rule) | §112(d)(7) is a savings clause protecting other statutory authorities; it does not bar EPA from revising its own §112 standards when reasonable | EPA’s interpretation is permissible under Chevron; petitioners lose on this issue |
| Whether EPA improperly excluded cost‑effectiveness from §112(d)(2) beyond‑the‑floor analysis | "Cost" means only absolute achievability (not cost‑per‑ton); EPA must set maximum achievable reduction regardless of cost‑effectiveness | §112(d)(2) allows agency discretion in how to weigh "cost"; EPA may consider cost‑effectiveness when determining beyond‑the‑floor achievability | Court finds EPA’s consideration of cost‑effectiveness reasonable; petitioners lose |
| Whether EPA unlawfully delayed compliance dates from 2013 to 2015 for PM and other pollutants | Changing compliance dates unlawfully extends the prior Rule’s deadline for pollutants whose limits were unchanged | EPA issued a new PM standard with a new effective date and permissibly coordinated a single practicable compliance date (2015) for integrated controls | Court upholds the 2015 unified compliance date as reasonable and consistent with prior precedent |
| Whether EPA may create an affirmative defense to civil penalties in citizen suits for "unavoidable" malfunctions | EPA lacks authority to preempt judicial determination of appropriate civil penalties; only courts decide remedies in private suits | EPA may flesh out when penalties are "appropriate" and use its rulemaking power under §301(a)(1) to create defenses | Court holds EPA exceeded its authority: the judiciary, not EPA, determines appropriateness of civil penalties in §304(a) suits; EPA’s affirmative defense vacated |
Key Cases Cited
- Portland Cement Association v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (earlier decision remanding 2010 Rule for including commercial incinerators)
- National Lime Association v. EPA, 233 F.3d 625 (D.C. Cir. 2000) (describing MACT/floor framework)
- Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) (holding malfunction exemption inconsistent with continuous standards)
- NRDC v. EPA, 489 F.3d 1364 (D.C. Cir. 2007) (agency may reset compliance date when it issues a new standard)
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (deference to reasonable agency statutory interpretations)
- Husqvarna AB v. EPA, 254 F.3d 195 (D.C. Cir. 2001) (agency may consider cost‑effectiveness in similar statutory contexts)