SMOG Standard On Hold: Obama Orders Withdrawal of Proposed Rules On Ground-Level Ozone

Last week, the White House announced that it would ask the Environmental Protection Agency (EPA) to withdraw the proposed rule which would revise the National Ambient Air Quality Standards for ozone, the main component in smog. The proposed rule would have strengthened the 8-hour “primary” ozone standard to a level within the range of 0.060-0.070 parts per million (ppm) (down from the 0.075 ppm standard established in 2008). It also would have established a cumulative, seasonal “secondary” standard within the range of 7-15 ppm-hours. EPA stated that the new rule would ensure that these standards are grounded in science, bringing them in line with the recommendation of the Clean Air Scientific Advisory Committee, EPA’s panel of science advisors.

The ozone standards are up for reconsideration under the Clean Air Act in 2013 and President Obama stated that he “did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.” The President confirmed that his decision to halt the rule is tied to the weakened economy, citing “the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover.”

Litigation over the existing rules was put on hold while EPA was determining whether to revise the standards; however, as reported by the New York Times, the American Lung Association and other groups have made it clear that they intend to revive the court battle. In fact, the Justice Department filed a notice with the Court of Appeals for the District of Columbia informing the court of this recent development. It is likely that a new briefing schedule will be set in the near future. Many believe that this will be a tough legal battle for the Justice Department. Not the least of the government’s worries is the fact that EPA Administrator Lisa Jackson has stated that the 2008 standard is “not legally defensible.” Another hurdle is the Supreme Court’s 2001 holding in Whitman v. American Trucking Associations, Inc., finding that EPA may not consider implementation costs when setting National Ambient Air Quality Standards.

The question of whether the right decision was made… well, this is a law blog, not a political blog, so we won’t get into that side of things… we will leave that to the plethora of political pundits.