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Ozone Game Back On, As Suits Resume

Friday, September 16, 2011

More items for Environmental Controls

She may be tuning up, but the fat lady has not yet sung in the battle over federal smog rules, as long-stalled lawsuits on all sides have now reignited with the Obama administration’s decision to scrap tougher standards.

President Obama announced Sept. 2 that he had ordered the Environmental Protection Agency to withdraw a longstanding proposal to further tighten ground-level ozone limits set by President George W. Bush’s administration.

EPA Administrator Lisa Jackson favored tougher limits, saying the Bush-era standard was “not legally defensible.”

Republicans, the coatings industry, utilities, oil and gas companies and the manufacturing sector all hailed Obama’s retreat as a victory, but the issue isn’t over.

Multiple lawsuits on all sides, which were filed earlier then put on hold awaiting a final decision, are now back on the front burner.

‘Obey the Law’

Among those crying foul is the American Lung Association, which filed suit after the Bush Administration decided in 2008 to allow more lenient ozone rules than those recommended in 2006 by the Clean Air Scientific Advisory Committee (CASAC), an independent group of advisers.

Federal mandates require that new standards be based on current scientific findings.

The ozone emission standards have been stalled at 84 parts per billion (ppb) since 1997. CASAC had recommended standards of 60 to 70 ppb, but Bush set a standard of 75 ppb. That triggered the suit by ALA, some states and public health groups, who said the 75 ppb limit was not strong enough to protect the public.

ALA suspended its suit in 2009, “following numerous assurances that the [Obama] Administration was going to complete this reconsideration and obey the law,” ALA president and CEO Charles D. Connor said this month.

Health Risks Cited

EPA proposed a tighter emissions standard in January 2010, but then stalled more than a year on issuing a final rule. The 11th-hour reversal, in the face of pressure from Republicans and the business community, infuriated ALA and other public health and environmental groups.

“For two years the Administration dragged its feet by delaying its decision, unnecessarily putting lives at risk,” said Connor. “Its final decision not to enact a more protective ozone health standard is jeopardizing the health of millions of Americans, which is inexcusable.”

ALA will “revive its participation in litigation,” Connor vowed.

EPA Administrator Lisa Jackson also had been pushing for the lower limits, saying the Bush-era standards were "not legally defensible."

Cost Argued

Meanwhile, on the other side of the issue, homebuilders, power companies and other industries that generate smog-forming emissions also sued over the Bush standards, but because those groups considered the plan too costly and too burdensome on business.

The longstanding opponents include the American Coatings Association, which represents coating manufacturers. “ACA hailed news of the withdrawal as a significant success for industry,” counsel Timothy Serie wrote on the association’s web site.

American Coatings Association counsel Timothy Serie hailed the withdrawal of the new ozone rule as “a significant success for industry.”

ACA “aggressively opposed” lower limits, saying they would have imposed “onerous costs and burdens” on the coatings industry and would have encouraged a new wave of regulation at the state level.

Arguments Set

On Monday (Sept. 12), the Justice Department told the U.S. Court of Appeals for the District of Columbia Circuit that it was prepared to resume the litigation by the industry, the states and the environmental and health groups, all of which will determine whether the Bush-era standards remain on the books.

The department asked that all sides be ready to return to court within 60 days.

Even if the Bush standards are upheld, the EPA may not implement them until the next scheduled review of the ozone standard in two years, at which point the process may begin all over again.

“Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013,” Obama said earlier this month. “Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.”

An American Lung Association bipartisan poll of likely 2012 voters taken in June 2011 found that an overwhelming majority support the EPA’s efforts to strengthen rules on ozone-causing pollution.