Is Bush smog standard next in court's bull's-eye?

In the wake of a federal appeals court decision to send the Bush administration's standard for airborne soot to U.S. EPA for review, some say ozone standards could be the next.

Soot and smog rules crafted by the Bush EPA have both been under fire from advocacy groups that say the standards are not protective of public health and welfare and that the administration ignored the advice of EPA science advisers.

The U.S. Circuit Court of Appeals for the District of Columbia sent EPA's 2006 standards for fine particulate matter -- or soot -- back to the agency for reconsideration yesterday, saying parts of the standards violated the law and were not supported by adequate science (Greenwire, Feb. 24).

"This decision increases the likelihood that the ozone standards will also be found invalid," said Earthjustice attorney David Baron, who is representing environmental groups in a lawsuit over the ozone standard. "Those involve the same kind of arbitrary disregard of the science as the standards thrown out [yesterday]."

The Bush EPA last March tightened its air pollution standard for ozone to 75 parts per billion (ppb), replacing the former standard of 84 ppb. The health standard is supposed to establish the amount of ground-level ozone that an average person can breathe over eight hours without risking health problems.


The standard is unpopular with environmentalists and industry groups alike.

Industry says the rules are too restrictive and force it into spending too much on compliance.

Environmentalists, meanwhile, say the Bush White House quashed EPA's plans to set a more restrictive "public welfare" standard that would protect forests, crops and other natural resources from long-term harm.

A coalition of environmental and health groups represented by Earthjustice is suing EPA over its ozone standards in the D.C. appeals court. The groups' opening briefs in the ozone case are due by April 1, Baron said.

Confronted with that deadline, environmentalists say they are confident the court will find that the Bush EPA made similar errors in setting both the soot and ozone standards.

"Between this decision and the [science advisers'] language on ozone, I think EPA will be hard-pressed to pursue defense of the old ozone standard," said Earthjustice attorney Paul Cort, who argued the case over the soot rule.

Court 'imposing its own judgment on EPA'

Jeff Holmstead, an industry attorney and former EPA air chief under President George W. Bush, said it is difficult to predict how the court will deal with the ozone standard, based on its decision in the soot case.

"I think it's a little hard to generalize from one to the other, except to say the D.C. Circuit seems much more inclined to weigh into these issues," he said.

Until four or five years ago, "the D.C. Circuit was much more inclined to defer to EPA, especially on technical issues," Holmstead said. Now, he added, "the D.C. Circuit has become much more active in imposing its own judgment on EPA."

The same court has tossed a series of Bush's major air pollution regulations in recent years, including the administration's signature regulation to curb soot and smog from power plants and its rule on mercury emissions from power plants.

The judges' decision to delve into the technical issues of the soot case was welcomed by environmental attorneys.

"What's particularly satisfying about the decision is that the court was willing to really engage on these technical questions and not just accept these hand-waving claims that 'Oh, this is all too technical, all too uncertain, you need to rely on our expertise,'" Cort said. "The court said, 'We'll rely on your expertise to the extent that you give us a reason to rely on your expertise.'"

EPA might 'flat-out reconsider' smog standard

Groups pressing the case at the appeals court hope the controversy over the ozone standard can be resolved without court intervention.

EPA Administrator Lisa Jackson told USA Today last week that she would take another look at the soot and smog limits set by the Bush administration. Some observers predict that she will soon announce that the agency plans to reconsider the ozone limits.

"I think that you actually could see the ozone standards just flat-out reconsidered," said John Walke, a senior attorney at the Natural Resources Defense Council. "I think it's a very real possibility that they will affirmatively agree to tighten the ozone standards, too, before even getting an adverse court decision."

If EPA were to announce a willingness to reconsider these standards, Earthjustice would consider putting the litigation on hold, Baron said. If the agency agreed to reconsider the standards and the court allowed it, the litigation would be at an end, he added. "We think that's what they should do," he said.

But Holmstead said EPA reconsideration of the standards was unlikely, given the host of other air pollution efforts the agency must tackle -- including the regulation of carbon dioxide emissions and implementing stringent standards for power plants' mercury emissions.

"They've got an awful lot on their plate," Holmstead said, "and I just don't think that they're going to voluntarily take on this major effort."

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