February 27, 2018
On February 16, 2018 the U.S. Court of Appeals for the District of Columbia sided with environmentalists in vacating a significant chunk of an Obama-era rule guiding implementation for the 2008 75 ppm ozone standard set during the George W. Bush administration according to this report from E & E News.
Senior Judge David Sentelle, a Reagan appointee who wrote the opinion for the unanimous three-judge panel, found that several parts of EPA’s rule were “inconsistent with the clear text” of the Clean Air Act.
The Court found that U.S. EPA unlawfully weakened protections when it decided to revoke the 84 ppm 1997 Clinton administration standard as part of the implementation rule. “EPA’s Final Rule allows areas that fail to timely attain to avoid being subject to more stringent emissions controls,” Sentelle wrote.
In its opinion, the court agreed with greens that the agency had unlawfully allowed areas that still hadn’t met the 1997 standard to avoid deadlines associated with that standard.
Sentelle also wrote that EPA “failed to introduce adequate anti-backsliding provisions” to ensure that the air pollution in nonattainment areas under the 1997 standard doesn’t get worse. Under the Clean Air Act, those measures have to be “not less stringent” than the controls that were in place before the standard was revoked.
The court’s decision will likely affect the Trump administration’s efforts to put in place an implementation rule for the 70 ppm 2015 ozone standard EPA proposed, a rule in 2016 that was partly based on the rule that the court today tore apart. EPA issued a final rule in 2015 laying out guidelines for states on how to improve air quality in areas that exceed that limit.
Led by the Sierra Club, greens challenged a number of aspects of the rule stemming from the revocation of the 1997 standard. They argued that EPA illegally delayed deadlines for areas with bad air pollution to put in place controls and allowed them to avoid “bump-ups” to levels of ozone pollution that come with more stringent regulatory requirements.
What this means to you
The Court vacated a part of an Obama-era rule guiding implementation for the 2008 75 ppm ozone standard. The Court found EPA unlawfully weakened protections when it decided to revoke the 84 ppm 1997 Clinton administration standard as part of the implementation rule. “EPA’s Final Rule allows areas that fail to timely attain to avoid being subject to more stringent emissions controls,” the court wrote.
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