Plaintiffs including coal producer Murray Energy, the U.S. Chamber of Commerce and the Utility Air Regulatory Group on April 22 filed joint arguments with a federal appeals court about why they think a final rule of the U.S. Environmental Protection Agency entitled “National Ambient Air Quality Standards for Ozone,” issued in October 2015, is illegal.
The argument at the U.S. Court of Appeals for the D.C. Circuit is over whether EPA’s adoption of the revised national ambient air quality standards (NAAQS) for ozone was arbitrary and capricious, an abuse of discretion, or contrary to the Clean Air Act (CAA) because:
- EPA failed to take adequate account of the impact of uncontrollable background levels of ozone in preventing achievement of those standards, and set standards that cannot be achieved in numerous areas given such background levels;
- The above legal defect has not been and cannot be cured by EPA’s reliance on alternative regulatory mechanisms;
- EPA failed to take into account relevant contextual factors, including the adverse economic, social, and energy impacts of adopting these stricter standards; and/or
- EPA did not provide a reasoned explanation for changing its conclusions drawn from the same basic underlying scientific evidence considered in the prior NAAQS revision.
Said the April 22 industry brief: “The CAA requires that NAAQS be achievable by regulation of U.S. sources. However, in revising the ozone NAAQS to a level lower than the prior standard, EPA failed to take into account the critical fact that naturally-occurring or internationally-transported background ozone that cannot be controlled under the Act can prevent achievement of those NAAQS in numerous areas of the country. That failure violated the Act.
“Additionally, although the Supreme Court has held that, in setting NAAQS, EPA cannot consider the costs of implementation, EPA can and must consider contextual factors such as the acceptability of, and the public’s tolerance for, the risks being addressed; and those contextual factors can all be influenced by the overall adverse economic, social, and energy impacts that could result from a revised NAAQS. Yet EPA did not consider those impacts here.
“Finally, despite the absence of any intervening study that changed the fundamental scientific understanding of ozone effects, EPA changed its conclusion regarding the acceptability of the risks from those drawn in the prior ozone NAAQS revision without providing a reasoned explanation for that change. That was arbitrary and capricious.”
EPA reduced the level of the 8-hour primary standard from 0.075 to 0.070 ppm, equivalent to 75 and 70 parts per billion (ppb), respectively, and it made the secondary standard the same as the primary standard. In doing so, EPA did not take into account the impact of background ozone concentrations in preventing achievement of those revised NAAQS, said the brief. This change affects a number of emissions sources, including coal-fired power plants.