The Trump administration faces steep odds in persuading a federal court to throw out landmark EPA regulations targeting a pollutant that claims thousands of lives each year, according to specialists in environmental law.
“To me, this is a Hail Mary pass,” said Victor Flatt, a law professor at Case Western Reserve University, in an interview, alluding to EPA’s decision to abandon its legal defense of a stronger soot exposure standard adopted only last year.
As the administration races to skirt a looming enforcement deadline, the bar could be higher still in the wake of last year’s Supreme Court decision that gave judges the upper hand over federal agencies in interpreting ambiguous provisions of federal law, other experts said.
That decision, in the case known as Loper Bright Enterprises v. Raimondo, was intended “to ensure greater consistency under statutes,” said Trish McCubbin, a professor emerita at Southern Illinois University’s Simmons Law School.
Accordingly, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit “will be hard pressed to give even a minimal level of respectful consideration to EPA’s new reading of the law when it directly contradicts the agency’s position from a year ago,” McCubbin added in the course of an email and phone exchange this week.
In the highly unusual U-turn, the administration is asking the court to vacate the strengthened annual exposure standard for what is technically known as fine particulate matter.
Long-term exposure to those particles — also known as PM2.5 because the individual specks are no bigger than 2.5 microns in diameter, or 1/30th the width of a human hair — is associated with a litany of ills, including higher risks of heart attacks, strokes and lung cancer.
EPA had adopted the stricter limit of 9 micrograms per cubic meter of air early last year during President Joe Biden’s term, with a prediction that it would avert up to 4,500 early deaths in 2032 when it’s supposed to be fully in effect. Overall, the health benefits would far outweigh compliance costs, the agency said at the time.
While the D.C. Circuit panel seemed ready to uphold the 9 micrograms standard during oral arguments last December, a ruling has been on hold since early this year, when the Trump administration sought more time to consider its position.
With its motion last week to now throw out the standard that acknowledged the Loper Bright ruling, EPA embraced the arguments of industry trade groups and Republican-leaning states who contend that the Biden administration didn’t give enough weight to the potential price tag and short-circuited the Clean Air Act’s requirement for a “thorough review” before reaching its decision.
In separate filings late Thursday, both the state and industry challengers endorsed EPA’s legal shape-shifting. Responses from public health groups and Democrat-led states that back the stricter soot limit are due Dec. 16.
The administration wants the panel to rule before Feb. 7, when EPA is legally required to make the initial round of “attainment designations” that spell out which parts of the United States will have to adopt cleanup plans because they are flunking the new standard.
EPA Administrator Lee Zeldin had initially fingered the stricter standard for repeal in a March announcement that blamed it for shutting down “opportunities for American manufacturing and small businesses.”
Although the agency had then planned to come up with a replacement rule, it has yet to issue even a draft version.
“I guess the motion is easier than going through the regulatory process,” said Steve Milloy, an attorney who publishes the blog JunkScience.com and contests the scientific consensus that PM2.5 exposure is harmful, in an interview. ”Maybe they don’t feel they have the bandwidth to do it.”
Asked this week whether a time crunch has led EPA to instead turn to the D.C. Circuit, spokesperson Carolyn Holran did not address the question. She reiterated an earlier statement that the 9 micrograms limit will cost “hundreds of millions, if not billions of dollars to American citizens if allowed to be implemented and was not based on the full analysis of available science” required by the Clean Air Act.
A complicated past and future
By one line of speculation, a loss at the D.C. Circuit level could open the door for EPA to appeal to the Supreme Court in hopes of overturning the justices’ 2001 decision in the case Whitman v. American Trucking Associations that EPA can’t consider compliance costs in setting National Ambient Air Quality Standards.
But that 9-0 opinion was written by conservative Justice Antonin Scalia and “the language of the statute is very clear,” said Dan Farber, who teaches law at the University of California Berkeley, in an email, adding that he thought it “extremely unlikely” that Whitman would be overruled.
Less than a year into Trump’s second term, the episode again attests to the hangover effects of decisions made during his first term. Under the act, particulate matter is among a half-dozen pollutants subject to the standards, which are supposed to be reassessed every five years to ensure that they mesh with the latest research.
After what environmental and public health groups viewed as a politically tainted review, Trump appointees in 2020 overrode the conclusions of EPA staff in opting to leave the previous PM2.5 standard unchanged at 12 micrograms per cubic meter of air.
Under Biden, EPA then conducted a more limited “reconsideration” of that status quo outcome. While that approach helped lead to a speedier decision to cut the standard to 9 micrograms, it is fueling allegations that the agency took an unlawful regulatory shortcut by not conducting a full-fledged review.
As courts make their way through the changed legal landscape wrought by the Loper Bright decision, there is also no unanimity that it will factor into the D.C. Circuit’s eventual ruling in the soot standard litigation. Flatt, for example, did not expect it to make a difference one way or the other.
“The NAAQS requirements are very straightforward,” he said, with “no ambiguity.”
Reach this reporter on Signal at SeanReilly.70.
