Federal judges appear poised to uphold EPA’s decision to toughen one of its most important air pollutant standards.
In an unprecedented about-face, the agency in February tightened its annual ambient air quality limit on fine particles after a 2020 decision to leave the standard unchanged. At issue is whether the agency had the authority to make that change without conducting a wider-ranging assessment.
During oral arguments Monday that ran well into overtime, members of a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit grilled industry and state challengers on their contention that the Clean Air Act requires EPA to first carry out a “thorough review” of underlying air quality criteria before revising the accompanying standards.
EPA’s “claimed authority” to act without that comprehensive review “simply does not exist,” said Elbert Lin, an attorney with Hunton Andrews Kurth who represents the U.S. Chamber of Commerce and other trade groups.
But Judge Patricia Millett later suggested that the Chamber’s stance would slow EPA’s ability to set pollutant standards in response to the latest scientific research.
“That just paralyzes the agency from reacting to new health information,” said Millett.
Fine particulate matter, commonly labeled soot, is tied to a higher risk of strokes, lung cancer and other cardiovascular and respiratory ailments, along with tens of thousands of premature deaths each year.
Under the Clean Air Act, it is among the pollutants covered by National Ambient Air Quality Standards that EPA is supposed to reassess every five years in light of an extensive roundup of the scientific evidence into their health and environmental effects.
In its February rule, EPA cut the annual exposure limit from 12 micrograms per cubic meter of air to 9 micrograms. In 2032, when the stricter limit is supposed to be fully in effect, the agency predicts it will save up to 4,500 lives, with total health benefits far outweighing the compliance costs.
The decision came more than three years after the agency — under then-President Donald Trump — concluded that the 12 micrograms standard remained adequate, a conclusion that ran counter to the findings of EPA career staff. Environmental and public health groups assailed it as politically driven.
Under current President Joe Biden, EPA Administrator Michael Regan announced the more limited reconsideration within months of the president taking office in 2021. The agency later released a supplemental roundup of scientific studies that helped provide the foundation for cutting the annual standard to 9 micrograms.
The Clean Air Act “puts the burden on the agency to look at all of the science,” not just a limited number of studies, Lin said.
But Judge J. Michelle Childs highlighted language in the act that gives EPA authority to promulgate new standards “earlier or more frequently” than every five years.
“You’re not giving any context to timing,” said Childs.
Direct and indirect sources of fine particulate matter include coal-fired industrial facilities and tailpipe exhaust. Business groups, joined by Republican-leaning states, argue that the stricter limit will make it harder to get the air permits needed for plant expansions and other projects to spur economic growth.
Kentucky and 23 other states had brought the initial legal challenge to the new limit, which became one of five suits that were eventually consolidated. Arizona state lawmakers and the state of Texas later brought their own challenges, as did the Essential Minerals Association, a mining industry advocacy group, and the coalition led by the Chamber.
In an earlier court brief, attorneys for EPA wrote that the agency has authority “to review and revise air quality criteria and standards at any time.”
In opting to undertake the reconsideration, EPA looked back at the administrative record and found that the 12-micrograms standard might not be “requisite to protect public health with an adequate margin of safety,” said Sarah Buckley, one of the Justice Department lawyers representing the agency.
In response to a question from Senior Judge Douglas Ginsburg, Buckley said the agency can revise one chapter in the research roundup without canvassing all the other chapters.
Siding with EPA are California and more than a dozen other Democrat-led states.
“It’s well recognized” that EPA has the authority to reconsider its Clean Air Act rules, California Deputy Attorney General Jonathan Wiener told the court. Accordingly, Wiener said, “EPA can promulgate a new standard without reopening every aspect of the criteria, including aspects of the criteria that may not be relevant to the standard in question.”
The arguments, scheduled to last 40 minutes, lasted more than twice that time. Ginsburg was nominated to the D.C. Circuit by former President Ronald Reagan, while Childs was nominated by Biden and Millett was appointed by former President Barack Obama.
The panel is expected to rule in the coming months.
