Jeremy Nichols comment, dated November 3, 2010

In this case, EPA failed to make its statutorily required finding in a timely manner. Indeed, EPA is just now making the finding that was required by 42 U.S.C. § 7513(b)(2). However, under the Clean Air Act, the EPA’s lateness does not allow the Agency to now ignore air quality data showing that a moderate nonattainment area “is not in attainment after the applicable attainment date.” The Clean Air Act does not allow such an exercise of discretion.