AIR POLLUTION:

Court sympathetic to enviros' challenge to Bush-era ozone standards

A federal appeals court today seemed responsive to claims from environmental groups and some states that U.S. EPA regulations setting standards for ozone pollution were not strict enough.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did not appear nearly as interested in the argument made by industry groups, which maintain that the standard, issued at the tail end of the George W. Bush administration, was too stringent.

Throughout the 100 minutes of argument, the judges appeared conscious of the fact that the standard is already 4 years old and will soon be revised again. A new standard is now due in 2014, EPA's lawyers said.

The case was put on hold in early 2009 after President Obama took office (Greenwire, Nov. 15).

Attention turned to the court once again when Obama announced in September 2011 that the White House had rejected EPA's proposal for a new standard and had asked for new regulations to be drafted.

What is in dispute is the Bush administration decision to set the National Ambient Air Quality Standard (NAAQS) for ozone, a major factor in smog, at 75 parts per billion.

That was higher than the 60 to 70 ppb level that the EPA's Clean Air Scientific Advisory Committee, known as CASAC, recommended. The American Lung Association and various states and environmental groups say the agency should have listened to what the committee said.

A large part of today's argument involved what deference the EPA administrator -- it was Stephen Johnson at the time -- must give to the committee's finding and, if its conclusions are rejected, what kind of explanation has to be given.

Judge David Tatel was the most vocal critic of how the committee's findings were handled.

He questioned at one point whether EPA had misstated the committee's work by, among other things, claiming it included policy pronouncements and was not based purely on science.

"I don't see any policy underlying CASAC's recommendation," he said.

The committee had, he added, merely said that the "overwhelming scientific evidence" suggested the standard should be lower than 70 ppb.

Justice Department attorney David Kaplan countered that the CASAC recommendations did include some findings that could be viewed as policy-related.

Judge Thomas Griffith appeared less certain than Tatel over how the court should consider the disagreement between the committee and the administrator.

"When there's a dispute between scientists, we stay out of it," he said.

But he noted later that Congress had set up CASAC to be an "honest broker" that would give EPA unvarnished scientific advice. He also wondered whether the court should take into account that the committee's findings were unanimous.

Tatel openly discussed how the court should act if it decides to send the regulations back to EPA, especially in light of the agency's ongoing work on a new standard.

If the court does rule against EPA, it seems most likely that the current standard would remain in place and that the agency would have the leeway to respond to the court's ruling as part of the same process that will result in the new standard.

The court spent little time today on the arguments raised by industry groups and the state of Mississippi.

Hunton & Williams attorney William Brownell started by arguing that EPA should have relied more on the risk assessment process that resulted in the earlier 1997 standard. Instead EPA adopted new techniques for assessing risk.

Just minutes into the argument, Tatel directed at Brownell what appeared to be a telling remark.

"Did you start with this point because it's your strongest argument?" he said.

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