Industry groups and the state of Mississippi are asking a federal appeals court to move forward on legal proceedings over national smog limits, despite U.S. EPA's plans to reconsider the George W. Bush administration's controversial standard.

In a brief submitted Tuesday to the U.S. Circuit Court of Appeals for the District of Columbia, Mississippi and industry petitioners asked the court to resume a legal battle challenging the agency's 2008 standard for ozone, or smog.

The Bush administration tightened its ozone pollution standards in March 2008 to 75 parts per billion (ppb), replacing the former standard of 84 ppb. A coalition of state and environmental groups sued the agency over the 2008 rule, arguing that it did not do enough to protect human health. Mississippi and industry groups also sued the agency to weaken its ozone limits.

The Obama EPA announced plans in September to reconsider the smog standard, citing concerns about whether the 2008 limit satisfies the Clean Air Act. The agency plans to issue a proposed rule by Dec. 21, and to sign the final rule by Aug. 31, 2010 (Greenwire, Sept. 16).

EPA asked the court to stall proceedings until it finalized reconsideration. But Mississippi, the National Association of Home Builders, the Ozone NAAQS Litigation Group and the Utility Air Regulatory group want the court to order briefing to resume in the cases.

The petitioners wrote that they will "suffer significant and irreparable harm as a result of both implementation of the ozone rule and the loss of their rights to due process if the court continues to hold these cases in abeyance." Should the court deny their request, petitioners asked the court to stay the 2008 rule in its entirety, rather than grant a partial stay.

To reduce states' workloads, EPA announced in September that it would propose to hold off on making area attainment designations under the 2008 standards but that it would continue to use the 2008 standards for New Source Review (NSR) permitting purposes.

But EPA argues that the request to proceed with legal briefings "inappropriately seeks to derail EPA's reconsideration of the 2008 ozone rule, for fear that EPA may conclude that a more protective standard is necessary to protect public health and welfare."

The agency also asserted that it would go against the public interest to stall the 2008 standards. "Though EPA believes the 2008 standards may not be adequately protective, staying them pending judicial review would only weaken needed public health and welfare protection -- protection that is needed beyond the 1997 standards, which are even less stringent than the 2008 standards," the brief says.

A coalition of state and environmental intervenors in the case weighed in on EPA's behalf, asking the court to deny industry's motion in its entirety.

"Industry's position that the court should reinstitute a briefing schedule on a rule that EPA is in the process of reconsidering is unprecedented and untenable," their brief says, adding that the groups have failed to prove that they are entitled to a court-ordered stay of the 2008 rule.

Click here to read the industry brief.

Click here to read EPA's brief.

Click here to read the states' and environmental groups' brief.