Earlier this month, the D.C. Circuit Court of Appeals ruled on
challenges to EPA's National Emission Standards for Hazardous
Air Pollutants from the brick and clay industries.
The Court granted the environmentalists' petitions almost in
their entirety and denied the industry petitions in their
entirety.
The decision is not really surprising, because EPA had failed to
justify a number of the decisions that it made. Nonetheless, I
don't see the decision as a total loss for the regulated
community. Why not? Chevron, that's why! The Court
affirmed several of EPA's interpretations of the statutory
requirements that were favorable to the regulated community. For
example, the Court deferred to EPA's interpretations of the
statutory terms in section 112(d)(4) of the statute, providing that
EPA may implement a health threshold-based emissions limit for
"pollutants for which a health threshold has been
established." The environmental plaintiffs still prevailed on
their
