AIR POLLUTION:

Lawyers plot next steps in legal battle over ozone rule

The Obama administration's scrapping of a proposed new rule that would toughen ozone standards has put lawyers involved in litigation over the existing regulations on alert.

Litigation before the U.S. Circuit Court of Appeals for the District of Columbia had been put on hold when President Obama took office in early 2009 and U.S. EPA considered whether to revise the rules first introduced the previous year, at the tail end of the George W. Bush administration.

The White House dismayed environmentalists last Friday when Obama announced that the administration wouldn't adopt the new regulations (Greenwire, Sept. 2).

The White House told EPA to wait for another ongoing review to finish, to avoid having two reviews hanging over the economy at once. Obama framed it as a step toward "reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover."

That means a new final rule wouldn't come until 2013 at the earliest, unless the court decides to speed up the process.

The now-abandoned proposal would have set the national ambient air quality standard (NAAQS) for ground-level ozone at between 60 and 70 parts per billion (ppb). The Bush administration's rule set the standard at 75 ppb.

The Bush standard seemed to please no one. Industry groups challenged it, saying it was too stringent, while environmental groups and the American Lung Association say it didn't go far enough.

The American Lung Association has already said it will "revive its participation in litigation with the administration, which was suspended following numerous assurances that the administration was going to complete the reconsideration and obey the law."

Even while the Obama administration was considering what to do with the Bush-era rule, industry groups had made it clear they wanted to continue with the litigation.

Allison Wood, a lawyer at Hunton & Williams who represents industry groups in the case, said she now expected briefing of the case to resume.

The first step would be for the court to issue an updated briefing schedule.

Wood said the White House announcement didn't have any bearing on her side's litigation strategy.

"This is more of a curveball for the other side," she added.

As for EPA, Justice Department lawyers notified the court of the administration's decision in a two-page filing Friday.

"In light of this development, EPA no longer expects that it will take final action to complete its reconsideration of the 2008 Ozone NAAQS in the near future," the filing states.

EPA said it would elaborate on its position in a subsequent filing, expected next Monday.

Earthjustice attorney David Baron, who represents the American Lung Association and other groups, said how his side proceeds depends on what EPA says in that filing.

"We are exploring all our legal options," he added.

'Not legally defensible'

Justice Department lawyers will return to court knowing that EPA Administrator Lisa Jackson has publicly said the Bush standards wouldn't hold up in court.

On July 11, two days after sending her package of final rules to the White House, Jackson wrote Sen. Tom Carper (D-Del.), one of the agency's staunchest allies as chairman of the Senate subcommittee that oversees the Clean Air Act.

The Bush administration's standards, she wrote, are "not legally defensible."

It's a sign of the abruptness of the change of course by the White House, which could be helpful to the American Lung Association and its allies, according to Peter Iwanowicz, the group's assistant vice president.

Considering that Jackson undercut the basis for the old standards in her letter, "lawyers at the EPA and the Justice Department are going to have to bend themselves into very curious-looking pretzels in order to defend against our lawsuit," he said.

The reason is Whitman v. American Trucking Associations Inc., a Supreme Court decision from 2001 in which Justice Antonin Scalia, writing for a unanimous court, wrote that the air quality standards for ozone must be based solely on public health -- not on implementation costs.

The decision to revisit the Bush-era standard was one of Jackson's first steps after being made administrator. EPA had just lost a lawsuit saying that it hadn't set strict enough limits on particulate matter, a blend of dust and soot that, like ozone, is regulated using air quality standards that apply in every corner of the country.

Making the case for the old ozone standard "posed major challenges for the federal government given the strength of the scientific record at that time, the weakness of the 2008 ozone decision in light of that scientific record and the requirements of the [Clean Air Act], and other factors," Jackson wrote to Carper last month, explaining her thinking.

"Were the standard to be overturned in court," she added, "it would have resulted in more financial and planning uncertainty for cities and states, when they could afford it the least."

In another twist, environmental groups have not completely abandoned efforts to implement the Bush rule, even while continuing their criticism of it.

WildEarth Guardians, in a separate case in the District of Arizona, is seeking to kick-start EPA designation of areas that have fallen below the 2008 standards.

The group claimed in a complaint filed Aug. 24 that EPA has missed Clean Air Act deadlines.

"Importantly, air quality is not being cleaned up to protect public health," the lawsuit states.