The Ozone Rule That Wasn’t: How EPA Makes Decisions

Vol. 43 No. 3

Jim Wedeking is with the firm Sidley Austin, LLP in Washington, D.C. The contents of this article reflect the personal opinions of the author and do not necessarily represent those of Sidley Austin or its clients.

In early September 2011, the Obama administration withdrew its proposed rule to revise the National Ambient Air Quality Standard (NAAQS) for ozone to a level more stringent than the 2008 standard promulgated by the Bush administration. See generally 73 Fed. Reg. 16,436 (Jan. 19, 2010) (Obama administration proposed rule to revise ozone NAAQS); 73 Fed. Reg. 16,436 (Mar. 28, 2008) (2008 Ozone Rule). Both the 2008 Ozone Rule—and the 2011 decision not to revise it—have been challenged in court, as is the norm for major U.S. Environmental Protection Agency (EPA) rulemakings. These lawsuits, however, go beyond the typical petitions for review that focus on just agency discretion and procedural minutiae. They raise questions about who makes decisions at EPA. At first glance, the answer appears simple: The Clean Air Act charges “[t]he Administrator” with “prescribing a national primary ambient air quality standard” for air pollutants. 42 U.S.C. § 7409(a). However, the two recent ozone disputes suggest otherwise.

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The Law of Adaptation to Climate Change: United States and International Aspects