On October 18, 2012, BakerHostetler filed a petition for certiorari asking the U.S. Supreme Court to consider an issue with significant and broad implications for every industry with regulated air emissions - with potential incremental costs in the billions of dollars at stake. Those interested in supporting this action by filing an amicus brief have until November 19 to do so. Please contact Robert Steinwurtzel (rsteinwurtzel@bakerlaw.com or 202.861.1708) or Mark DeLaquil (mdelaquil@bakerlaw.com or 202.861.1527) for more information on the issue.

BACKGROUND

The petition, filed on behalf of ASARCO, LLC, concerns the U.S. Environmental Protection Agency's (EPA) authority under the Clean Air Act to set primary national ambient air quality standards (NAAQS). The Clean Air Act directs EPA to promulgate NAAQS at the level that is "requisite to protect the public health" while "allowing an adequate margin of safety." 42 U.S.C. § 7409(b)(1). As these standards "affect the entire national economy," the Supreme Court held in Whitman v. American Trucking Associations, 531 U.S. 457, 475-76 (2001), that EPA must set them at the level that is "requisite," i.e., "not lower or higher than is necessary" to protect public health with an "adequate margin of safety."

In 2010, EPA promulgated a revised NAAQS for sulfur dioxide. See Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35,520 (June 22, 2010). Asarco and others challenged EPA's revised NAAQS on the grounds that the limit was set lower than necessary to protect public health with an adequate margin of safety. The District of Columbia Circuit affirmed EPA's revised NAAQS on the grounds that EPA "chose a level below that which produced adverse effects . . . in order to set a standard that allows an adequate margin of safety." Nat'l Envtl. Dev. Ass'ns Clean Air Project v. EPA, 686 F.3d 803, 811 (D.C. Cir. 2012). The D.C. Circuit did not, however, consider whether the standard was more stringent than necessary to protect public health, despite acknowledging that the administrative record may not "necessitate" the level of the revised standard. Id. at 813.

The petition asks the Supreme Court to consider whether the District of Columbia Circuit erred by concluding that EPA's authority to include an adequate margin of safety in promulgating NAAQS allowed the court to avoid determining whether EPA set the NAAQS at a level that is more stringent than is necessary to protect public health. The petition contends that, by treating EPA's authority to include an adequate margin of safety as license to avoid determining whether or not the standard was more stringent than necessary to protect the public health, the D.C. Circuit abrogated its duty to police the scope of Congress' delegation to set the NAAQS at the level that is "requisite," and in so doing created a conflict with the Supreme Court's opinion in Whitman.

EPA has promulgated to date NAAQS for six separate pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution and sulfur dioxide. The standards for these pollutants are reviewed, and, in many cases, revised every five years. See 42 U.S.C. § 7409. While the current case arises in the context of the sulfur dioxide NAAQS, the question of whether a reviewing court may forego considering whether a NAAQS is more than adequate to protect public health by invoking EPA's authority to use an "adequate margin of safety" will recur every time EPA promulgates revised NAAQS. By obliterating the lower bound limit on EPA's authority in setting the NAAQS, the ripple-effects of the D.C. Circuit's decision will impact every industry in the country with regulated air emissions. The costs associated with these regulations are significant. By EPA's own estimates, for example, industry will incur approximately $1.5 billion to comply with the revised sulfur dioxide NAAQS.

This case is docketed as Asarco LLC v. Environmental Protection Agency, et al., No. 12-510.