A few determined environmental advocates have attempted for years to use the Clean Air Act’s strict transportation conformity rules to tie up planned highway improvements.  For the most part, courts have rebuffed those efforts, opting instead for a more pragmatic approach to the complex scheme of approving and funding transportation projects in accordance with air quality attainment requirements. 

Just before Christmas last month, the D.C. Circuit took a decidedly different tack, one that could throw any number of State Implementation Plans (SIPs) into question.  The transportation industry, from planners to the construction trades to state and local agencies, should take notice of this troubling ruling and be prepared to address the potentially messy aftermath.

The recent decision focuses in part on EPA’s revocation of out-of-date conformity requirements for ozone.  After the agency strengthened the ozone National Ambient Air Quality Standard (NAAQS) in 2008, EPA proposed in 2012 to revoke the old 1997 NAAQS for ozone for the purposes of, and only for purposes of, transportation conformity requirements.

Why would the agency want to take that narrow action?  EPA explained that absent a revocation of the earlier ozone NAAQS, areas currently designated as “nonattainment” or “maintenance” for the old standard could be placed in the awkward position of implementing the conformity program for both the 1997 and 2008 standard.  An already complicated process of calculating how transportation projects would impact air quality standards would be made even more confusing.

Moreover, no harm would result from this action, EPA told the court, because the new ozone NAAQS was stricter than the 1997 requirements.  If certain areas are found to be in attainment for this stricter standard, why should they be forced to comply with prior weaker ones?  And, if an area were already in nonattainment for the weaker standard, it would still need to address that situation for its updated SIPs.

For an agency too often decried for being unwilling to be practical in its enforcement of regulations, this administrative decision practically oozed common sense.  Apparently, that wasn’t good enough for the D.C. Circuit majority.

The plain text of the Act mandated that transportation conformity requirements “shall apply to nonattainment and maintenance areas,” even using outdated standards.  Citing earlier cases, the court found that EPA simply lacked the authority to revoke only conformity requirements, even for a short period of time.  Congress’ overarching concern that motor vehicles present the largest source of ozone pollution dictated that the old requirements must stay in effect, even if many areas would now meet the newer, enhanced standard.

The dissent written by Judge Randolph pointed out the practical absurdity with this rationale.  Will attainment deadlines for ozone set years ago now be retroactively shortened as a result of the court ruling?  Must state and local transportation plans be retroactively disapproved?  How does an area comply with two existing standards?  The fact that many commenters to EPA’s rule requested this relief and that the appellants had not raised the argument during the rulemaking process was of no moment.

No wonder many state and local politicians often throw up their hands in frustration when trying – sincerely trying – to create transportation plans that meet various air pollution standards.  It’s hard enough to comply with one standard, never mind two.

Perhaps the next time these revised ozone (or other pollutant) standards come before the D.C. Circuit (and they most assuredly will), associations representing various transportation stakeholders should remind the court that sometimes complying with a law is a lot more involved than simply reading it.