ELR Citation: ELR 20150
No(s). 06-1045 (D.C. Cir. Jul 10, 2009)

The D.C. Circuit remanded portions of EPA's phase 2 rule for implementing the eight-hour ozone NAAQS. CAA §172(c)(1) requires that nonattainment areas achieve "such reductions in emissions from existing sources in the area" as can be achieved by the adoption of reasonably available control technology (RACT). The phase 2 rule allows participation in the nitrogen oxide (NOx) SIP Call to satisfy this area-specific statutory mandate. But EPA failed to show that NOx SIP Call compliance will result in at least RACT-level reductions in emissions from sources within each nonattainment area. Accordingly, EPA's determination that compliance with the NOx SIP Call satisfies the RACT requirement is inconsistent with the "in the area" requirement and, thus, violates the plain text of CAA §172(c)(1). In addition, EPA acted arbitrarily when it eliminated the requirement that an attainment demonstration be approved for an area before a new source would be allowed to use a past emission reduction to offset new emissions. Similarly, the elimination of the 18-month time limit for new source review waivers violates the Act's antibacksliding provision. The court, however, deferred consideration of the rule insofar as it relates to the clean air interstate rule program. The petition for review was denied in all other respects.