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Industry Fights Calls For Court To Force EPA Issuance Of Ozone Standard Industry is fighting demands from states and environmentalists for a federal appeals court to force EPA to immediately issue its long-delayed revisions to the Bush EPA's 2008 ozone national ambient air quality standard (NAAQS), while urging the same court to resume stalled briefing on their lawsuit challenging the Bush-era rule as unnecessarily stringent. “EPA is not under any obligation to review or revise the NAAQS for ozone until March 27, 2013,” according to two industry groups' motion filed Aug. 11 in the stalled litigation over the standard. The Clean Air Act only requires NAAQS reviews every five years, so industry argues that any revision before 2013 is not necessary or warranted. EPA late last month missed a self-imposed, non-binding July 29 deadline for issuing its final version of a proposal to tighten the Bush EPA's ozone standard of 75 parts per billion (ppb) to between 60 and 70 ppb, in line with the range recommended by the agency's Clean Air Scientific Advisory Committee (CASAC). Activists, lawmakers and industry groups are waging last-minute lobbying efforts with EPA and White House officials to sway the outcome of the rule. The White House Office of Management & Budget (OMB) has been reviewing the final rule since July 11. Legal challenges in the U.S. Court of Appeals for the District of Columbia Circuit, consolidated in State of Mississippi, et al. v. EPA have been put in abeyance pending the agency's issuance of its final reconsidered ozone standard. EPA told the court earlier this year that it intended to meet its July 29 non-binding deadline for issuing a final rule, and at the time successfully fought off activists' attempts to have the court make the late July date a hard legal deadline. The agency is due to update the court Aug. 12, and is almost certain not to issue the final NAAQS before then. After EPA missed the July 29 deadline and said only it would issue a final rule “shortly,” environmentalists and states returned to court earlier this week to demand that the court force immediate issuance of the final NAAQS. Several states in favor of a stricter standard -- including California, Connecticut, New York and Oregon -- filed an Aug. 11 motion asking the court to force immediate release of the revised standard. To bolster their case they cite comments from EPA Administrator Lisa Jackson on the need for a stricter NAAQS in order to adequately protect public health from the adverse impacts of ozone pollution. The 13 states that signed on to the motion warn that the longer EPA stalls on issuing a stricter standard, the longer the delay will be for health benefits from that standard. The state's arguments echo an Aug. 8 motion from environmental and public health groups including the Natural Resources Defense Council and American Lung Association (ALA) saying an order for immediate issuance of the NAAQS is necessary because public health will suffer without a stricter standard. “An order setting a deadline for EPA action is warranted because the agency simply cannot otherwise be relied upon to take timely final action,” the motion says. No Air Law Mandate The groups -- the Ozone NAAQS litigation group representing a number of industrial sectors and the Utility Air Regulatory Group representing power companies -- say the fact there is no mandate for EPA to act on the revised rule means environmentalists cannot show any legal requirements for the court to compel the rule's issuance. The industry groups in a separate Aug. 11 motion ask the DC Circuit to resume briefing in their lawsuit challenging the Bush-era standard as too stringent. Industry has long argued that its litigation should resume regardless of EPA's revisions to the rule. Industry says nothing in the agency's reconsideration will satisfy their legal challenges because industry believes the original standard is too strict and the Obama EPA has proposed to tighten it. Asking for a restart of briefing in the case, they cite EPA's own position, taken in earlier court filings, that “it would not be appropriate to defer judicial review indefinitely pending EPA’s reconsideration.” The National Association of Home Builders in a separate Aug. 10 motion says that environmentalists and states have been hypocritical with their earlier support for placing the consolidate litigation in abeyance. “Delay was entirely acceptable to the ALA if it meant that the industry petitioners’ day in court would be put off, when the ALA assumed that the administration would issue a new and even more stringent ozone rule.” Although the court April 4 rejected environmentalists' motion to compel EPA to complete the reconsideration by July 29 by making that date a hard legal deadline, EPA in response to that motion indicated that it would be open to resuming briefing in the consolidated Mississippi litigation should it miss the deadline. The activists' motion seeking immediate release of the final rule asks the court to require that briefing to govern the litigation over the existing standard be due 10 days after the agency issues a final NAAQS. 11th-Hour Lobbying A coalition of over 170 business organizations sent an Aug. 11 letter to President Obama urging against any issuance of a revised standard due to economic concerns. Critics of a stricter standard say it will put many areas of the United States out of attainment with the NAAQS for the first time. Being in nonattainment requires states to craft air quality plans for meeting the standard by imposing potentially expensive pollution controls on industrial sources of ozone. “A new ozone standard at this point in time would limit business expansion in nearly every populated region of the United States and impair the ability of U.S. companies to create new jobs,” says the letter from the industry groups including the American Petroleum Institute (API), Corn Refiners Association and others. The groups warn that a standard within the proposed stricter 60 to 70 ppb range would cause 7.3 million job losses and up to $1 trillion in compliance costs by 2020, according to some private sector estimates. This contrasts with EPA's estimate that compliance costs would run from $20 billion to $90 billion annually. EPA, however, has repeatedly asserted that the monetized benefits of the rule including reduced health impacts far outweigh the costs. API meanwhile has requested an 11th-hour meeting with White House Chief of Staff William Daley next week to discuss their concerns about a stricter standard, but sources say the meeting is not yet confirmed. In an attempt to counter industry's lobbying, nine Democratic and independent senators sent an Aug. 11 letter to Obama “to express our disappointment at the Administration's continued delay in setting a health-protective ozone air quality standards.” The senators call for EPA to strengthen the NAAQS to within CASAC's range. “We are disturbed by media reports that a number of industry groups are urging the Administration to set a weak ozone standard, or to avoid setting a new standard at all. In so arguing, polluters are ignoring 40 years of data demonstrating that clean air investments are good for public health and the economy,” says the letter from Sens. Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), Ben Cardin (D-MD), Kristen Gillibrand (D-NY), John Kerry (D-MA), Frank Lautenberg (D-NJ), Patrick Leahy (D-VT), Joseph Lieberman (I-CT) and Bernard Sanders (I-VT). Environmentalists meanwhile met with OMB and EPA officials July 27 to press their case for a standard at the stricter end of CASAC's range. Also, healthcare professionals' associations including the American Nurses Association met with OMB officials Aug. 2 to call on the administration to issue a health-protective standard. Source: Inside CalEPA |
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