The Obama administration has asked a federal appeals court to stall proceedings over pollution limits for smog to give U.S. EPA more time to determine whether to revise the controversial Bush-era standards.
Justice Department attorneys on behalf of EPA yesterday asked the U.S. Circuit Court of Appeals for the District of Columbia to vacate the briefing schedule for a lawsuit in which a coalition of states and environmental and health groups is suing the agency to strengthen its standards for ozone, a component of smog. Several industry groups also sued EPA to push for weaker ozone limits.
The Bush EPA last March tightened its air pollution standards for ozone to 75 parts per billion (ppb), replacing the former standard of 84 ppb. But critics blasted the administration for ignoring EPA's Clean Air Scientific Advisory Committee, which recommended that the agency ratchet down the primary ozone standard to 70 ppb or lower.
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.
Environmentalists also accused the Bush White House of intervening to prevent EPA from establishing a tighter secondary standard to protect forests, crops and wildlife, something EPA staff members and science advisers had recommended.
Meanwhile, industry petitioners argued that the lower Bush-era standards would make it tougher for states to comply and could have damaging economic effects. State compliance measures could include stricter regulations on emissions from coal-fired power plants and other industrial sources, or beefing up tailpipe emissions programs aimed at taking older cars and trucks off the road.
In its motion yesterday, EPA requested the extension to allow new agency officials to review the national air quality standards for ozone to determine whether the Bush administration's rule "should be maintained, modified or otherwise reconsidered." The agency asked for six months to inform the court how it intends to handle the rule.
According to EPA's motion, none of the petitioners in the case opposed the request to hold off on the court briefings.
"Whether the agency decides to formally either modify the standard or undertake formal reconsideration proceedings, we don't know yet, but we think this is an encouraging step," said Earthjustice attorney David Baron, who is representing environmental groups in the lawsuit.
EPA's request came as little surprise to some environmentalists, who predicted that EPA might voluntarily review the standard after the same appeals court last month sent the Bush administration's pollution standards for airborne soot back to the agency for review (Greenwire, Feb. 25).
Revising the standard to comply with science advisers' recommendations would be a fairly simple task, Baron said.
"They don't have to reinvent the wheel here," Baron said. "This is not a situation where we or the medical community is asking EPA to second-guess the scientists; it just has to essentially do what the scientists have already told them they need to do."
Still, some industry groups are hopeful that EPA will relax its standard.
"We want it to match what the science dictated," said Amy Chai, staff counsel for the National Association of Home Builders, which sued the agency over last year's rule. "We felt that the current ozone standard goes beyond that."
But that seems unlikely, even though cities are already struggling to meet the current ozone standard, said industry attorney Jeff Holmstead, who served as EPA's clean air chief under former President George W. Bush.
"Clearly, the environmental community is an important constituency for the Obama administration," Holmstead said. "Given that fact and the strong statements from [the Clean Air Scientific Advisory Committee], you would have to suspect that they will be looking at making the ozone standard even more stringent when already it's at a level that will be impossible for many U.S. cities to meet."
Click here to read EPA's motion.