In a recent video interview with Lexblog Network TV (LXBN TV), Fred Wagner expanded on his post “Transportation Conformity Form Over Substance” on the firm’s EnviroStructure blog. The post discusses a December 2014 ruling by the U.S. Court of Appeals for the District of Columbia Circuit overturning an EPA rulemaking that would have streamlined transportation conformity planning by allowing planners to comply with ozone ambient air quality standards that were updated in 2008 rather than prior 1997 standards.
Noting that EPA is frequently criticized for its lack of regulatory flexibility, Wagner noted the irony in the court overturning EPA’s attempt to provide some relief. “EPA went to battle with one hand behind their back," Wagner said, "they were trying to be more flexible…but they didn’t have a lot of support in the record to demonstrate why.”
To obtain flexibility in the rulemaking process, Wagner suggested that industry and municipal advocates: “Think about what the challenge is going to be in court two or three years later and imagine having to argue before judges ‘here’s why this makes common sense’, and put those things right there in the docket in the Federal Register…that makes the job of the Department of Justice and the EPA a lot easier.”