Greens ready to litigate as EPA preps ozone standard

Source: Amanda Reilly, E&E reporter • Posted: Wednesday, September 30, 2015

Environmentalists are threatening legal action if U.S. EPA fails to finalize a new ozone standard that they believe protects public health.

EPA is said to be ready this week to finalize a standard of 70 parts per billion — a number that greens find lacking.

“The 70-part-per-billion option would be just blatantly unlawful,” said David Baron, managing attorney at Earthjustice.

Ground-level ozone is a key ingredient in smog, which forms when nitrogen oxides and volatile organic compounds react in sunlight. Ozone gas been linked to negative health effects such as exacerbation of asthma and reduced lung function.

Under the Clean Air Act, EPA must set pollution standards that provide an ample safety margin for protecting public health.

The current standard, 75 ppb, was set by the George W. Bush administration in 2008. In its proposal to lower the limit last November, EPA said it determined through a review of public health science that the 75 ppb level no longer met the requirement of the law. It proposed to tighten the standard to within a range of 65 to 70 ppb.

EPA faces a court-ordered deadline of Oct. 1 to pick a final limit. Sources say the agency will pick 70 ppb.

In a call with reporters yesterday, environmental groups argued there was consensus in the medical community that a 70 ppb limit wouldn’t protect the public, particularly children and the elderly, from the adverse health effects.

“It is not defensible or responsible to set the standard at 70,” said John Walke, a senior attorney and air specialist at the Natural Resources Defense Council.

The American Lung Association, American Thoracic Society and American Academy of Pediatrics have called on the Obama administration to set a new standard no higher than 60 ppb (see related story).

Last year, EPA’s own scientific advisers said a new limit of 70 ppb would likely not pass the ample-margin-of-safety test of the Clean Air Act and recommended that EPA choose a limit more toward the 60-to-65-ppb range.

“We deserve better, frankly, than 70 parts per billion, which is the weakest and the least health protective option that’s under consideration,” said Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign. “This is not just a number on a page. It’s someone’s child being rushed to the hospital, it’s the death of a loved one and it’s basic fairness.”

The groups also expressed concerns that a 70 ppb limit would give the public a false sense of security because it is tied to EPA’s Air Quality Index, a system that alerts the public when air quality has fallen below the national standard.

“We sued the Bush administration for adopting a 75-parts-per-billion standard,” Earthjustice’s Baron said, “and I think there’s a good likelihood that we would sue if the Obama administration adopted a 70-parts-per-billion standard.”

Business and industry groups have waged an aggressive campaign against a new standard on Capitol Hill, in the administration and over the airwaves. Led by the National Association of Manufacturers, they have argued that a new standard would impose crippling economic costs and halt expansion of businesses across the country.

Although environmentalists will likely view a 70 ppb limit as a concession to industry, a NAM representative said last week that his group would also not be satisfied unless EPA retains the existing limit of 75 ppb.

“Our view is that the only appropriate outcome is for EPA to allow manufacturers and states to comply with the existing 2008 standards,” said Greg Bertelsen, the trade group’s director of energy and resources policy.

Baron hinted that environmental groups would likely intervene on behalf of EPA in an industry challenge to the standard while at the same time pushing the court for a lower limit.

Compounding environmentalists’ concerns about the administration bowing to industry pressure is the Obama administration’s decision in 2011 to punt on a new ozone standard as elections loomed.

NRDC’s Walke called that choice the “worst environmental decision” of President Obama’s first term and characterized this week’s decision as a way of making things right with environmental groups.

“The question remains,” he said, “whether the smog health standard will remain unprotective when the Obama administration leaves office.”