D.C. Circuit declines to throw out EPA finding on NAAQS ozone rule

The U.S. Court of Appeals for the District of Columbia Circuit said, for the most part, it is denying several challenges to the Environmental Protection Agency’s National Ambient Air Quality Standards (NAAQS) for ozone.

“For the reasons given below, we deny the petitions, except with respect to the secondary ozone standard, which we remand for reconsideration,” a three-judge panel said in a 48-page decision.

“The court basically said that it’s a call to be made by EPA exercising its judgment,” said Jeff Holmstead, an industry attorney with Bracewell & Giuliani. In the latter days of the George W. Bush administration EPA elected to go with a NAAQS level for ozone that was less stringent than the one sought by the Clean Air Science Committee or CASAC, Holmstead said.

The NAAQS decision was issued by EPA after Holmstead had already left the Bush administration as EPA’s head of the office of air and radiation issues.

“EPA is entitled to exercise its own judgment,” Holmstead said, so legally the decision is important. “As a practical matter it’s back in EPA’s lap in any event” because the standards are supposed to be revisited every five years, Holmstead said.

The Obama administration EPA is well underway in its review of the NAAQS issue, Holmstead told GenerationHub.

An attorney with the Clean Air Task Force said her organization was not a party to the litigation and is still reviewing the decision. The National Mining Association (NMA) is still reviewing the document also, an NMA spokesperson said.

“We now confront the parties’ competing petitions for review. One set of petitioners—comprising several states, the District of Columbia, New York City, and a number of environmental and public health groups—thinks the primary and secondary NAAQS are not protective enough, while the other set—comprising the state of Mississippi and several industry groups—thinks they are too protective,” the appeals court said.

“This opinion considers each of these claims in turn. We reject Mississippi and the industry groups’ challenge to the primary and secondary standards in Part II. We explain our denial of the governmental and environmental petitions with respect to the primary standard in Part III and our grant of these petitions with respect to the secondary standard in Part IV.”

Mississippi and the industry petitioners challenged EPA’s threshold decision to revise the primary NAAQS level. Mississippi and the industry groups claim several aspects of the EPA decision were arbitrary.

The Clean Air Act requires EPA to set primary NAAQS that are “requisite” to protect the public health with an adequate margin of safety.

Mississippi argues at length that EPA should have compared the evidence available in 2008 to the evidence available in 1997—in particular, the clinical, epidemiological, and toxicological studies, risk assessments, and EPA’s protocol for sensitive populations. “We need not respond point by point; suffice to say that EPA reasonably explained how the scientific evidence had in fact changed since the 1997 review,” the court said in its opinion.

Because EPA failed to determine what level of protection was “requisite to protect the public welfare,” EPA’s explanation for the secondary standard violates the Clean Air Act, the appeals court said.

“We therefore remand this portion of the final rule for further explanation or reconsideration by EPA. In the meantime, we leave the standard in place rather than vacating the rule,” the court held.

Oral argument was held in November 2012. The case is Mississippi versus EPA; No. 08-1200.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.