Let the People Speak: Notice-and-Comment Rulemaking (Lessons from the Controversial New Source Review Proposal of the Clean Air Act)

Document Type



The Environmental Law Reporter




Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking's proposed definition based on cost of changes or maintenance address this clear language of Congress.---Victor B. Flatt, A.L. O'Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003.

Taken together, the two proposed exclusions from NSR would allow many grandfathered air polluters to operate indefinitely without installing state-of-the-art pollution control equipment. This would contravene the purpose of NSR, which is to ensure that grandfathered facilities eventually do improve their environmental performance.---Michael M. O'Hear, Assistant Professor, Marquette University Law School, written comments submitted to EPA on March 2, 2003.

The CAA provides that when existing sources change their facilities in ways that increase their emissions they should be treated as new sources. That should be the end of the matter. —Mark Squillace, Professor of Law, University of Toledo College of Law, written comments submitted to EPA in March 2003.

The proposed rule undercuts both the plain meaning of the CAA and Congress’s underlying intent. It breaches the plain meaning because “modification” is literally defined as “any physical change” that “increases the amount of any air pollutant.” Courts take this language literally, permitting exceptions only in deminimus situations [citations omitted]. —Robert R.M. Verchick, Ruby M. Hulen Professor of Law and Urban Affairs, and students of the University of Missouri-Kansas City School of Law, written comments submitted to EPA on March 31, 2003.