Ozone Standard Challenged in Multiple Court Actions

by Matthew Madia, 6/10/2008

The U.S. Environmental Protection Agency's (EPA) new, stricter national air quality standard for ozone is being challenged in multiple court actions, all of which are asking a federal appeals court to review the final rule. Although the new standard, announced March 12, is an improvement over the previous standard, environmental groups, state and local governments, and business interests all have filed lawsuits hoping to force the EPA to reconsider its decision.

EPA regulates ozone under the Clean Air Act. Exposure to ground-level ozone is associated with a variety of adverse health effects including asthma attacks and premature death. The Clean Air Act requires EPA to reevaluate the standard for ozone every five years, although the agency had not revised the standard since 1997. Under the act, EPA sets a primary standard to protect public health and may set a secondary standard to protect special considerations such as ecologically sensitive areas and valuable farm crops.

EPA's decision to set both the primary and secondary standards at the same level drew attention for several reasons. First, the scientists advising the agency recommended more stringent standards than the final levels announced. The act requires EPA to base its decision on the best available science. The EPA Clean Air Scientific Advisory Committee recommended EPA set the standards within a certain range, but the final standards were set above this range.

Second, in its regulatory process, EPA chose for the first time to set the secondary standard at a different level than it had previously. Third, although EPA's final decision was based, in part, on using cost as a consideration, the act prohibits EPA from considering costs when setting the standards; costs may be considered at a later point when deciding how to implement the standards.

Perhaps the most contentious element of EPA's decision, however, was the apparent interference by President Bush and other White House staff. Documents released by EPA show that the agency's decision to set a separate, more protective secondary standard was overridden by Bush after the EPA and the Office of Information and Regulatory Affairs (OIRA), the White House office responsible for reviewing agency regulations, reached an impasse over the secondary standard. OIRA, on the basis of economic considerations, argued for the secondary standard to be the same as the primary standard.

Five environmental groups filed a review petition May 27 asking the U.S. Court of Appeals for the D.C. Circuit to review the final rule. The groups are challenging EPA's decision because the new standards were not set consistent with the best available science. The American Lung Association, Natural Resources Defense Council, Environmental Defense Fund, National Parks Conservation Association, and Appalachian Mountain Club filed the suit. They are represented by Earthjustice, a nonprofit environmental law firm.

Fourteen states and two cities also filed a petition May 27. They seek to have stricter ozone standards than EPA's final rule established. The states are New York, California, Connecticut, Delaware, Illinois, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania, and Rhode Island. The cities of New York and Washington, DC, joined the suit.

According to the regulatory impact analysis EPA was required to prepare for the new regulation, the new standard will prevent at least 260 premature deaths, 890 heart attacks, and 200,000 missed school days every year starting in 2020. Had EPA adopted a standard at the weakest end of the range recommended by its scientific advisors, an additional 300 premature deaths, 610 heart attacks, and 440,000 missed school days could be prevented every year.

Mississippi filed a review petition May 23 hoping to have the standards relaxed. A coalition of industry groups also filed a petition May 27 objecting to the stricter standards. According to a BNA article (subscription), these lawsuits are likely to target the methods and interpretations of the scientific analyses EPA performed during the rulemaking process. Various business groups argued during the rulemaking process that the costs to industry would be too high if EPA chose to change the standard from the 1997 levels.

The coalition of industry groups is the Ozone NAAQS Litigation Group, representing organizations like the National Association of Manufacturers and the U.S. Chamber of Commerce. The Utility Air Regulatory Group, an association of electric generating companies and national trade associations, is also a party in the industry lawsuit.