ELR Citation: ELR 20109
No(s). 87-288 (D.N.J. Jun 29, 1994)

The court holds that the Clean Air Act (CAA) Amendments of 1990 did not eliminate New Jersey's obligation to comply with its pre-1990 state implementation plan (SIP) and the court's 1987 scheduling order requiring the state to design a consumer and commercial products strategy to meet the national ambient air quality standard (NAAQS) for ozone. The court first finds that the state is in violation of the scheduling order and holds that it must enter an appropriate order for enforcement of the order. The court holds it impermissible to relieve the state of its obligations under the SIP and the scheduling order and to defer any regulatory action until after the U.S. Environmental Protection Agency (EPA) has acted because under the CAA savings clauses §§110 and 115, the state's existing SIP and the scheduling order remain in effect until or unless equivalent or more restrictive standards are adopted. The court notes that the CAA's new attainment deadline for ozone reduction is an outside date and the CAA Amendments explicitly reaffirm the Act's primary legislative purpose of attaining NAAQS "as expeditiously as practicable." The court next holds that nothing in the CAA Amendments indicates that the state should delay implementing its own ozone reduction strategy until after the EPA has acted, and that to allow otherwise would result in inordinate delay because EPA is already well behind schedule and rules might not be issued for at least eight years. The court rejects the state's argument that its lack of expertise, scientific knowledge, and resources excuse it from complying with its SIP and the scheduling order, noting that the state could avoid duplicative efforts and conserve resources if it relied on data obtained from EPA and other states that have already adopted ozone reduction regulations. The court also rejects the state's contention that promulgating its own regulations before EPA does will disrupt consumer and commercial product markets, because the Third Circuit has rejected similar economic impracticability arguments. Finally, the court holds that its adoption of the revised scheduling order's timetable is reasonable, because more than five years have passed since the original order's 1988 deadline, the intervals between each compliance stage are very similar to the original schedule's intervals that the state itself had proposed, and the state has already proposed and adopted a rule that a state court invalidated on purely procedural grounds.

Counsel for Plaintiffs
Edward L. Lloyd, Prof.
Rutgers University
Rutgers Environmental Law Clinic
15 Washington St., Rm. 334, Newark NJ 07102
(201) 648-5695

Counsel for Defendants
Deborah T. Poritz, Attorney General
Attorney General's Office
R. J. H. Justice Complex
25 Market St., CN 080, Trenton NJ 08625
(609) 292-4925