Court orders EPA to redo Bush-era ozone plan

A federal appeals court rejected several Bush-era air pollution measures today that would have made it easier for industries in areas already struggling with high levels of ozone pollution.

In a 53-page opinion, the U.S. Circuit Court of Appeals for the District of Columbia ordered U.S. EPA to redo two key pieces of its 2005 rule that outlined pollution-reduction requirements for areas not in compliance with the federal eight-hour ozone standard.

There are 55 areas in noncompliance with the eight-hour standard, including the Los Angeles, Houston, Atlanta and Washington, D.C., metropolitan areas.

The Natural Resources Defense Council and New Jersey convinced a three-judge panel to remand a portion of EPA's "phase 2" ozone rule that would have allowed some power plants to sidestep more aggressive nitrogen oxide cleanup limits because they had already met other regulatory requirements.

EPA also was told to redo its plan that would have given areas with poor cleanup records a chance to meet their ozone requirements by purchasing credits from already-shuttered power plants.


The court outright dismissed another EPA provision that waived more aggressive emission cleanup rules for areas shifting to the eight-hour ozone standard from an earlier threshold that measured ozone on an hourly basis.

But the D.C. Circuit opinion did not entirely go against the Bush administration's EPA.

The court did approve EPA's decision -- supported by the National Petrochemical & Refiners Association -- not to carry over more stringent regulations for volatile organic compounds as the country transitions into the eight-hour standard.

It also accepted the Bush administration's "clean data policy" that allows an area to sidestep some demonstration requirements after it comes into compliance with federal air quality standards.

The Obama administration's EPA now must decide how to rewrite the three sections of the eight-hour ozone regulation that came out on the losing end of today's court opinion, one of many air pollution tasks carried over after courts struck down rules written during President George W. Bush's administration.

John Walke, a senior attorney at NRDC, said the opinion validates a long-running fight against the Bush EPA. "The air pollution agenda of the Bush administration has been dismantled by the courts, from soup to nuts," he said.

An electric-utility industry attorney tracking the Clean Air Act regulatory debate insisted the D.C. Circuit opinion was not a slam dunk. "If you're counting issues, EPA won on more issues than it lost on," said the attorney who asked that his name not be used because he had not yet briefed his client on the decision.

The underlying EPA air pollution rule -- finalized in 1997 and upheld by the Supreme Court in 2001 -- limits ozone to 85 parts per billion (ppb) measured over eight hours. The earlier, one-hour 120 ppb threshold was set in 1979.

EPA spokeswoman Catherine Milbourn said the agency would "evaluate the decision and determine an appropriate course of action once the review is complete."

The case is Natural Resources Defense Council et al. v. EPA, Case No. 06-1045.

Click here for the D.C. Circuit opinion.

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