D.C. Circuit Court Upholds EPA Ozone Standards

Published September 26, 2019

A three-judge panel of the District of Columbia Court of Appeals unanimously rejected challenges filed by industry, some states, and environmental groups to Environmental Protection Agency regulations issued in 2015 tightening the nationwide ambient air quality standard for ground-level ozone from 75 to 70 parts per billion (ppb).

The court rejected claims from energy companies, including coal company Murray Energy, the U.S. Chamber of Commerce, the American Petroleum Institute, and some states that the National Ambient Air Quality Standards for ozone would be prohibitively expensive to achieve, particularly in areas affected by sources of pollution outside their control.

Environmental groups, who challenged the 70 ppb standard as too lenient, being the least restrictive level in the range of standards EPA considered, were also disappointed by the ruling.

Not ‘Arbitrary, Capricious’

The court found EPA’s standard could not be overturned unless the agency acted unlawfully or unreasonably in issuing it.

“Agency action may be reversed if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or in excess of statutory authority,” the court stated in its decision. “We cannot look at EPA’s decision as would a scientist, but instead must exercise our ‘narrowly defined duty of holding agencies to certain minimal standards of rationality.’ We repeat: it is not our job to referee battles among experts; ours is only to evaluate the rationality of EPA’s decision.”

The court ruled EPA’s decision to set the standard at 70 ppb was not irrational and was within the agency’s discretion.

In a partial victory for the environmental groups, the court directed the EPA to revisit secondary ozone standards established by the Obama administration meant to protect animals and vegetation and scrapped a grandfathering provision allowing some sources in the middle of a permitting process to continue operating under an earlier, less stringent ozone threshold.

‘Middle of the Road’ Decision

The court’s ruling was disappointing but not surprising, says Steve Goreham, executive director of the Climate Science Coalition of America and a policy advisor to The Heartland Institute, which publishes Environment & Climate News.

“I doubt the Supreme Court will take up the case should it be appealed, as the D.C Circuit Court has taken what it believes is a ‘middle of the road’ approach to regulations grounded in previous court rulings, as industry and states wanted no change in the national ozone standard and environmental groups wanted even tougher regulations,” Goreham said. “EPA’s 2015 decision to lower the ozone standard from 75 ppb to 70 ppb, although arguably unnecessary from a public health perspective, was well-researched and received 430,000 public comments.

“The current leadership at EPA may not want to implement this tighter standard, but to avoid doing so they would need to undertake a new rulemaking process and directly challenge the science used to support the standard,” said Goreham. “Such a challenge would be difficult because the court ruled, according to the 1970 Clean Air Act, naturally high background ambient ozone levels should be handled during enforcement, not when setting standards, and it determined industrial cost considerations could not be used when setting appropriate national standards.”

Duggan Flanakin ([email protected]) writes from Austin, Texas.