The D.C. Circuit Court of Appeals has rejected the Natural Resources Defense Council’s (NR DC’s) challenge to the U.S. Environmental Protection Agency’s (EPA’s) “hot spots” rule, which allows the construction of new transportation projects so long as developers undertake efforts to offset additional air emissions. NRDC v. EPA, No. 10-1105 (D.C. Cir. 10/28/11).
In 2006, EPA originally promulgated the final rule titled “PM2.5 and PM10 Hot Spots Analyses in Project-Level Transportation Conformity Determinations for the New PM2.5 and Existing PM10 National Ambient Air Quality Standards.” 71 Fed. Reg. 12,468 (3/11/06). The D.C. Circuit remanded the rule to EPA in 2007 for clarification. Envtl. Defense, Inc. v. EPA, 509 F.3d 533 (D.C. Cir. 2007). On remand, EPA issued an amendment that revised certain language to more accurately track the Clean Air Act (CAA). 75 Fed. Reg. 14,260 (3/24/10).
NR DC and two other organizations challenged the amended rule, arguing that it still fails to embody the CAA’s requirement that the transportation project not “delay timely attainment of any standard or any required interim emission reductions or milestones in any area.” They argued that the amended rule unlawfully allowed projects to go forward even if they violated state air quality implementation plans.
The court disagreed, determining that the amended rule met the CAA’s requirements and that the agency’s interpretation—“that a new project delays attainment only if its implementation postpones attainment beyond the date by which it would have been achieved without the project”—was reasonable. According to the court, under petitioners’ analysis, “a new project could not be approved unless it would accelerate the reduction of emissions enough to ensure timely compliance.”