A federal appeals court appeared unlikely Friday to find that EPA illegally skipped review of the impact of Biden-era air standards on vulnerable species — even as judges grappled with the question of whether the standards constituted an agency action that triggered the analysis.
During oral arguments, two judges of the U.S. Court of Appeals for the District of Columbia Circuit questioned a Center for Biological Diversity lawyer on whether the agency’s decision not to change thresholds for nitrogen oxides (NOx) and fine particles and to lower levels of sulfur oxides (SOx) would harm plants and animals protected under the Endangered Species Act.
“It’s very hard to show that keeping levels the same or lowering them would have an effect on species or critical habitat,” said Judge Neomi Rao. “I understand CBD to be making this perhaps clever accumulation theory, but in what sense does EPA’s decision cause accumulation beyond what would already occur?”
Jonathan Evans, senior attorney with the Center for Biological Diversity, made the case that an “ongoing degraded baseline” for the pollutants targeted under EPA’s standards — which were designed to shield ecosystems from the effects of pollution deposition — has caused acid rain that affects animals like whooping cranes.
He noted that the Biden-era standards, which the Trump administration is defending, flout recommendations from EPA’s own independent Clean Air Scientific Advisory Committee, which endorsed reduced benchmarks for NOx and fine particles, in addition to SOx.
Rao, a Trump appointee, asked whether EPA would have to set pollution levels at zero to avoid further accumulation in the environment.
Evans said the key question is whether EPA’s actions affect endangered species — and whether the agency was required under the ESA to study those impacts. He noted that EPA is required under the Clean Air Act to come up with new standards every five years.
“The point of the degraded baseline is that — if we call that the baseline — it’s being degraded regardless of what EPA does,” said Judge Sri Srinivasan, an Obama appointee.
Evans replied that EPA had the discretion to lower the pollution thresholds and provide more protections for endangered and threatened species.
Under the Clean Air Act, EPA must routinely reassess National Ambient Air Quality Standards for SOx, NOx and fine particles in light of emerging evidence about their effects. EPA is mostly focused on primary NAAQS, which safeguard public health.
The standards at issue in the D.C. Circuit argument are EPA’s first-ever secondary protections for public welfare and ecosystems.
Michelle Spatz, a Justice Department attorney representing EPA, made the case Friday that the agency’s adjustment of the SOx threshold would not have an effect on species because sites would still need to come into compliance with stricter primary NAAQS.
Spatz faced lots of questions from Rao and Srinivasen on EPA’s position that the standards did not constitute a final agency action that could trigger ESA review.
Rao noted that EPA had argued that if it were to lose the case, the court should remand the standards to the agency but not toss them out because federal regulators spent years developing them.
“That seems to undermine the argument that there was no action here,” Rao said.
Spatz said she didn’t follow the argument and asked Rao to repeat her question.
Later in the argument, Rao and Srinivasen asked Spatz whether the “harmless error” standard, or the idea that a court could uphold an agency’s action despite minor procedural mistakes, applies in the case.
“There is no error, and if there were, it would be harmless,” Spatz said.
Rao replied: “Why doesn’t the government argue that in its brief?”
Spatz responded that the point isn’t essential to the agency’s argument
“No, but it bolsters the argument,” Rao said.
Spatz replied: “I agree, your honor.”
Judge Karen LeCraft Henderson also presided over the arguments but asked no questions.
