At long last, battle over Bush ozone standard heads to court

After a lengthy delay, a federal appeals court tomorrow will tackle the legality of U.S. EPA regulations setting standards for ozone pollution that were issued by the George W. Bush administration four years ago.

The case before the U.S. Court of Appeals for the District of Columbia Circuit, Mississippi v. EPA, was put on hold in early 2009 after President Obama took office. EPA then considered whether to revise the Bush standard for ozone, which is one of the main components of smog.

But when President Obama announced in September 2011 that the White House had rejected EPA's proposal and had asked for new regulations to be drafted, attention again turned to the court case (Greenwire, Sept. 7, 2011).

The now-abandoned Obama EPA 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 set the standard at 75 ppb.

It is that standard that is before the court, which will hear one hour and 40 minutes of arguments tomorrow morning. The standard faces challenges from all sides: Industry groups said it was too stringent, while environmental groups, the American Lung Association and various states say it did not go far enough.


The three-judge panel consists of Judge David Tatel, appointed by President Clinton, and two President Bush appointees: Judge Janice Rogers Brown and Judge Thomas Griffith.

In the last year, the appeals court has upheld EPA's most recent air quality standards for sulfur dioxide and nitrogen dioxide.

But current EPA Administrator Lisa Jackson once described the Bush standard as "not legally defensible," which presumably gives some comfort to the challengers on both sides.

The environmental petitioners, including the Natural Resources Defense Council and Environmental Defense Fund, argue that the standard did not sufficiently protect public health and welfare and had therefore failed to follow the requirements laid out by the Clean Air Act. The administration's decisionmaking was therefore "arbitrary and capricious" under the Administrative Procedure Act, which lays out how federal agencies should go about issuing regulations, the environmental groups say.

They also claim that the Bush administration should have set a different standard for the impact of ozone on trees and other vegetation, which it declined to do.

David Baron, the Earthjustice attorney arguing on behalf of the groups, said that the Bush administration ignored a "large body of evidence," including the advice of EPA's Clean Air Scientific Advisory Committee. That advice indicated that tougher standards were needed to protect both human health and the environment, Baron said.

Both decisions show that "science has not been fairly and properly dealt with," he added. "Unfortunately, that's what happened here."

The attack from the other side, claiming the standard is too strict, is led by the Ozone NAAQS Litigation Group and the Utility Air Regulatory Group and joined by the state of Mississippi. The challengers question whether the health evidence was actually new and claim that the regulations "fail to reflect accurately the latest scientific knowledge."

In 2002, the same court -- after the case went up to the Supreme Court -- eventually upheld EPA's previous standard, which was 80 parts per billion, the challengers point out.

"At most, the scientific evidence continues to support the public health judgments this court affirmed in 2002 and nothing more," the industry lawyers wrote in legal papers.

Facing legal assaults on two fronts, EPA's lawyers argue in their court papers that the agency "reasonably utilized the latest scientific knowledge" at the time in determining what the standard should be.

All the litigants rely on "picking out bits and pieces of evidence they consider to be favorable to their arguments, but they fail to consider that evidence in light of the whole body of scientific evidence in the record," the government lawyers say.

Most pertinently, all of the parties challenging the standards ignore "the importance of uncertainty in weighing the studies they discuss," the government argues.

It is the court's duty, the lawyers say, to "defer to EPA's reasoning regarding the uncertainty remaining in the latest science on the known and anticipated public welfare effects of ozone."

Next steps

From a regulatory perspective, the effects of the case could range from nonexistent to monumental in the eyes of public health advocates.

That is because EPA's next steps on the ozone standard are already laid out. Next year, the agency will review the standard as part of its five-year periodic requirement under the Clean Air Act.

And if last year's abandoned proposal is any indication, EPA is likely to suggest a standard of between 60 and 70 ppb. Most observers expect the agency to put forth a proposal by the end of 2013 and finalize it in 2014, though advocates remain concerned that timetable could slip.

That process -- reviewing available science, conferring with its advisory panel -- was due to happen since Obama tabled the original proposal and regardless of the lawsuit.

"How [the case] will influence EPA is a good question, and I'm not sure there is an easy answer," said Frank O'Donnell of Clean Air Watch. "The strategy they have going forward is fairly set in concrete if not in stone."

However, if the court sides with industry in its challenge to the standard, it could remand the standard to EPA and instruct it to keep in place the now 15-year-old standard that proceeded the 2008 75 ppb limit.

Such a standard, O'Donnell said, would be "ludicrously outdated" and would "absolutely increase the urgency for EPA to proceed promptly with the new standard."

Bill Becker of the National Association of Clean Air Agencies added that even the current 75 ppb standard provides the public a "false sense of security" that the air they breathe is safe. A return to 84 ppb would be a "horrific step back," he said.

He noted that the ozone NAAQS is at the root of other important regulations, such as EPA's rules to address air pollution that drifts across state lines.

Currently, those regulations are based on the 84 ppb standard, which there is broad agreement is insufficient. For those rules to be effective, Becker said, the 75 ppb standard is a step in the right direction toward what he believes will be a tighter standard in 2014.

Ultimately, the shifting standards create a problem for local air agencies, as well as industry.

"If there is one thing that industry and states can agree upon is we need some certainty in the Clean Air Act program," he said. "To change course and reverse action would just send a terribly wrong message."

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