Environmental -- active

Murray Energy Corp. v. EPA   (D.C. Circuit)

Challenging 2015 ozone standard

The NAM and other associations filed a petition to review the EPA's final rule lowering the ozone National Ambient Air Quality Standard (NAAQS) from 75 to 70 parts per billion. The rule could be one of the most expensive in history, and is overly burdensome for manufacturers. Further incremental improvements in ozone levels in many areas will be very difficult and expensive to achieve, since ozone levels are down more than 30 percent since 1980 and the previous standard is already stringent.

Joining in the petition for review with the NAM are the Chamber of Commerce, American Coke & Coal Chemicals Institute, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, Independent Petroleum Association of America, National Oilseed Processors Association, Portland Cement Association, and Utility Air Regulatory Group.

On Jan. 25, 2016, the NAM, our coalition partners, and several additional new coalition partners moved to intervene in a suit brought by the Sierra Club and other environmental groups that want to lower the standard even further. These cases have been consolidated.

On April 22, 2016, we filed our opening brief arguing the EPA failed to take adequate account of the impact of uncontrollable background levels of ozone in preventing achievement of the new standards; that the defects cannot be cured by the EPA’s reliance on alternative regulatory mechanisms; the EPA failed to take into account relevant contextual factors, including the adverse economic, social, and energy impacts of adopting these stricter standards; and the EPA did not provide a reasoned explanation for changing its conclusions drawn from the same basic underlying scientific evidence considered in the prior ozone standard revision.

On August 17, 2016, we filed our intervenor brief arguing that the environmental groups’ arguments that the EPA was required to make the ozone standard even more stringent do not have merit. The EPA is not required to set ozone levels that would prevent all adverse effects, but it must consider multiple factors in determining the correct level to protect public health. The EPA justified its decision not to make the ozone standard even stricter, and the environmental groups’ arguments that the standard should be stricter are inconsistent with the EPA’s actions. In addition, the EPA’s action concerning ozone permitting represented a reasonable exercise of its discretion to interpret the statute and should be upheld.

On Sept. 14, 2016, we filed our reply brief responding to the EPA's defenses to our challenges. We reaffirmed arguments made earlier in this case, focusing on the EPA's failure to account for the impact of background ozone on the ability of states to meet the requirements of the standard, its failure to consider the overall impact of the standard in the context of the public's risk tolerance, and its failure to provide adequate explanations for changing some of its conclusions regarding acceptable levels of ozone.

Oral argument, originally scheduled for April 19, 2017, was indefinitely suspended on April 11 while the Trump Administration reviews the 2015 ozone standard. On July 17, 2017, we filed a brief opposing a Motion to Intervene filed by the States of California, New York, Rhode Island, Vermont, and Washington; the Commonwealth of Massachusetts; the Delaware Department of Natural Resources & Environmental Control; and the District of Columbia (jointly “California Movants”). California Movants filed long after the 30-day deadline for filing, and the NAM opposed the Movants’ intervention on the grounds that permitting intervention now would violate established rules of procedure. The EPA also opposed the Motion to Intervene.

Related Documents:
Opposition Motion to Intervene  (July 17, 2017)
Industry Reply Brief  (September 14, 2016)
Intervenor Brief  (August 17, 2016)
Opening Brief  (April 22, 2016)
Statement of Issues  (January 25, 2016)
Motion to intervene in Sierra Club challenge  (January 22, 2016)
Shopfloor blog  (December 23, 2015)


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