Once Again, Appeals Court Overturns EPA Clean Air Rule

By Cat Lazaroff

WASHINGTON, DC, January 5, 2000 (ENS) - The Kansas City, Missouri area will have to find new ways to clear up its air. The D.C. Court of Appeals, which blocked two clean air rules last year, has now overturned a 1998 regulation that would have allowed areas like Kansas City to allow only clean burning gasoline to be sold, to help reduce vehicle emissions and air pollution.

The governors of Kansas and Missouri had asked the U.S. Environmental Protection Agency (EPA) for permission to include the Kansas City area in the federal Reformulated Gasoline (RFG) program. The 1990 Clean Air Act mandated that RFG could be sold in parts of the U.S. that do not meet federal air quality standards for ozone. RFG contains additives that increase the oxygen content of the fuel, allowing it to burn more completely, and reducing air pollutants in vehicle emissions.

gas pump

Reformulated gasoline burns more cleanly than regular gasoline (Photo courtesy Department of Energy)
But Kansas City does not violate federal air quality standards. More precisely, it does not fit into one of four violation categories - Marginal, Moderate, Serious or Severe - which were specified by Congress as eligible to participate in the RFG program.

It is possible for an area to not fit into any of those categories, yet still not quite meet the EPA’s clean air standards. Such areas are in a fuzzy area of "nonattainment" - not significant violators, but not enjoying the full benefits of clean air, either.

So in September 1998, the EPA broadened its interpretation of the RFG program to allow any "area currently or previously designated as a nonattainment area for ozone ... or any time later, may be included on petition of the governor," whether or not they now fall in one of the four specified categories. The Kansas City region was one of some 80 areas that fell under this designation.

The American Petroleum Institute and the National Petrochemical and Refiners Association, concerned that their supplies of the more expensive RFG fuel would be disrupted by the demands of additional markets, sued the EPA, claiming the agency exceeded its authority by broadening the RFG rule.

The two trade groups argued that Congress had specified that only areas that fell into those four specific pollution categories could join the RFG program, and therefore, the EPA was out of bounds in interpreting Congress' intent as including other areas with more limited pollution problems.

The U.S. Court of Appeals for the District of Columbia agreed, and ordered the agency to review its rule.

"Congress provided for opt-in only for areas classified as marginal, moderate, serious or severe. It meant what it said," the court wrote in its ruling. "If Congress makes an explicit provision for apples, oranges and bananas, it is most unlikely to have meant grapefruit."

The EPA had argued that Congress meant to include all areas that were in "nonattainment" of federal clean air standards, whether or not they fell into one of the specified pollution categories. But the court disagreed, writing, "Acting within a universe where nonattainment and the four categories overlap but are distinct, Congress chose the four categories. If it meant to express "nonattainment," its wording was not merely a long-winded but a positively obtuse way of doing so."

The API applauded the court's decision. "API supports clean fuels based on need, sound science and cost effectiveness," the group said in a statement. "Expansion of the RFG program to [less polluting] areas does not meet these criteria."

API said the EPA rule would have expanded the scope of the RFG program in ways that were not anticipated by the refining industry, and not intended by Congress.

RFG costs more than non-reformulated gasoline, and the court noted "there is some concern about the nation's current RFG production capacity." In that light, the court called Congress’ decision to limit the RFG program to areas falling in the four specified categories "entirely sensible."

The decision marks the third time a three judge panel of the D.C. Appeals Court has blocked an EPA clean air rule. In May 1999, in a suit brought by several industry groups, the court overturned the agency’s 1997 smog and soot rules, saying the EPA had overstepped its constitutional authority. The same court upheld its own decision in October 1999, rejecting an EPA appeal.

Also in May 1999, the D.C. Court of Appeals blocked the EPA’s September 1998 regulation directing 22 states and Washington, D.C. to significantly reduce nitrogen oxide emissions to combat smog. Two of the judges in this case also sat on the panel for the smog and soot ruling.

The application by Kansas and Missouri’s governors was put on hold to await the court's final ruling. The status of the Kansas City region - and its ability to fight air pollution with cleaner fuels - is now in limbo until the EPA can revise and resubmit its RFG rule, a process which could take years.

The court ruling is available online at: http://www.cadc.uscourts.gov/common/opinions/200001/98-1561a.txt