Court Postpones EPA Ozone Lawsuit

A federal appeals court postponed arguments in a 2015 lawsuit challenging the US Environmental Protection Agency’s then-recently imposed lower ground-level ozone limits while the agency reviews its regulations in response to a presidential executive order (OGJ Online, Apr. 12, 2017).

EPA was directed to file status reports on the review of its 2015 National Ambient Air Quality Standards for Ozone at 90-day intervals beginning 90 days from the Apr. 11 order signed by Judges Thomas B. Griffin, Cornelia T.L. Pillard, and Robert L. Wilkins of the US Appeals Court for the District of Columbia. “Within 30 days of the agency notifying the court and the parties what action it has or will be taking with respect to the 2015 rule, the parties are directed to file motions to govern future proceedings in these consolidated cases,” their order said.

The American Petroleum Institute, Independent Petroleum Association of America, National Fuel & Petrochemical Manufacturers, US Chamber of Commerce, and National Association of Manufacturers were among groups petitioning EPA to review the 2015 NAAQS for ozone. The regulation reduced limits to 70 ppb from the 75 ppb in the 2008 requirements that many state and local governments had not implemented fully.

“I think it’s a positive indication that the court may allow EPA to reconsider what was done on the ambient air quality standard during the Obama administration,” IPAA Executive VP Lee O. Fuller told OGJ on Apr. 13. “The Bush administration revised the ozone NAASQS in 2008. The Obama administration began to revise it in 2012 and made it final in 2014. But the states really hadn’t had time to implement the 2008 standards.”

He said that a closer look at what EPA stated in its 2014 proposal and 2015 action for the 70 ppb limit, it essentially said most areas of the country would meet it without new local regulations. “So the question is whether changing the standard provides meaningful health benefits. The answer is not really. EPA’s own documents said most of what was provided under the 75 ppb standard met the limits,” Fuller said. Major metropolitan regions such as the Los Angeles Basin and the Houston-Galveston area already have to reduce their ozone emissions limits annually by a set percentage already, so a new federal standard would not change that process nor increase health benefits, he continued.

Dropping limits to 70 ppb would affect new non-attainment areas, depending on their locations relative to the new standard, Fuller said. The federal Clean Air Act has a series of ozone non-attainment criteria. If an area moves into a moderate or worse category, offsets would be required for any new construction, he indicated. “If EPA wanted to focus its resources more effectively, it should look more at attainment than new standards. Otherwise, it won’t get the health benefits,” Fuller said.

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