RECENT FEDERAL DECISIONS

January 2007

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EPA’s Decision to Permit State to Move Vehicle Inspection Program to Contingency Status Is within EPA’s Sound Discretion
Kentucky Resources Council, Inc., v. U.S. Environmental Protection Agency, ___F.3d___

Petitioner’s challenged U.S Environmental Protection Agency’s (EPA)s final rulemaking action approving revisions to Kentucky’s State Implementation Plan (SIP). Under the EPA-approved revisions, Kentucky was allowed to move its vehicle inspection and maintenance (I/M) program for three Kentucky counties from the active, or “regulatory” portion of the SIP, to the contingency measures portion of the SIP. Petitioner argued that the I/M program fell within the “applicable requirements” language of the Clean Air Act’s (CAA) § 51.900(f), thereby remaining subject to an ongoing obligation to implement the I/M program. Applying the second prong of the Chevron test of statutory interpretation, the 6th Circuit held that EPA properly invoked its rights under the statute to exercise “regulatory flexibility,” thereby acting consistently within the statutory language and scheme by holding that the I/M program meet the statutory conditions for moving this program into contingency measures.