EPA can revise provisions of ozone rule — court

Source: Sean Reilly, E&E reporter • Posted: Monday, August 14, 2017

A federal appellate court has given U.S. EPA a do-over on parts of a rule setting requirements for states to meet the 2008 air quality standard for ozone.

The rule, put in place early last year, is being challenged by the Sierra Club and other environmental groups in part on the grounds that it gives states too much leeway in meeting the 2008 limit (Greenwire, May 13, 2015). In an order yesterday, the U.S. Court of Appeals for the District of Columbia Circuit granted EPA’s unopposed motion to revise several “anti-backsliding” provisions related to both the 2008 ozone standard and the previous benchmark set in 1997.

In seeking to make changes, EPA attorneys cited the agency’s failure to adequately respond to public feedback during the rulemaking and to spell out the rationale for its decision in proceeding with various aspects of the provisions in question, according to the motion. Their filing cites a previous D.C. Circuit ruling that it is preferable to “allow agencies to cure their own mistakes rather than wasting the courts’ and the parties’ resources reviewing a record that both sides acknowledge to be incorrect or incomplete.”

The environmental groups’ suit has been consolidated with a separate legal challenge by the South Coast Air Quality Management District, which covers much of the Los Angeles area. Final briefs in the case are due Dec. 1.

The 2008 ozone standard is 75 parts per billion; in October, EPA Administrator Gina McCarthy lowered the threshold to 70 ppb.