Restoring Webster’s definition of “best” under the Clean Air Act

Abstract

"Two recent cases, Vigil v. Leavitt and Latino Issues Forum v. EPA, demonstrate that the Environmental Protection Agency and the courts have failed to mandate the adoption of best available control measures as required by the Clean Air Act. San Joaquin Valley, California, and Phoenix, Arizona, were each designated as serious nonattainment areas for particular matter pollution and, therefore, were each required to adopt best available control measures. The states designed menu of options schemes to provide regulated agricultural actors a flexible list of control choices to choose from. The Environmental Protection Agency and the Ninth Circuit ruled that the menus satisfied the Clean Air Act’s statutory requirement. This Note argues that no reasonable interpretation of the word “best” leads to that conclusion. While best available control measures is not defined by the Clean Air Act, the statute, case law, and the Environmental Protection Agency’s own internal guidance documents all clearly articulate that best technology-based standards require “maximum” emissions reduction. The menus fail to maximize emissions reductions. As a result, the Environmental Protection Agency and the courts have contravened the intent of the Clean Air Act and have authorized an imprudent new regulatory approach." (p. 1)