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(consolidated with American Petroleum Institute & NAM v. EPA) -- The NAM filed a brief in March of 1998 calling on the court to review the final rules on the EPA's new air quality standards for ozone and particulate matter, as well as a final EPA rule relating to the "federal reference method" for National Ambient Air Quality Standards. On May 14, 1999, the U.S. Court of Appeals for the District of Columbia rejected these rules implemented by the EPA concerning ozone pollution. This ruling, a victory for manufacturers, was subsequently appealed to the Supreme Court, which reversed in 2001.

The D.C. Circuit's ruling temporarily stopped the EPA from assuming arbitrary authority. Manufacturers have struggled with EPA standards that are unrealistically strict and not reasonably related to clear health benefits. The ruling required EPA to say why the ozone pollution levels it has set are reasonable in term of health effects

The Court denied in part and granted in part the EPA’s petition for rehearing on Oct. 28, 1999.

The Government petitioned for Supreme Court review, on 1/26/99. The EPA appealed three issues, including whether:

1) the rulemaking process used by the EPA in revising the ozone and PM NAAQS "effects an unconstitutional delegation of authority";

2) the D.C. Circuit erred in assuming it had authority to review as a final agency action EPA’s "preliminary preamble statements on the scope of the agency’s authority to implement the revised ‘eight-hour’ ozone NAAQS;" and

3) subpart 2 of the Clean Air Act (which sets requirements for areas to come into attainment with the one-hour ozone standard) restricts EPA’s authority under other provisions "to implement a new and more protective ozone NAAQS" until the one-hour standard is attained.

EPA did not appeal the D.C. Circuit’s finding that the Agency must consider all health effects, both negative and positive, in setting a standard.

Background: When EPA issued its new air rule for ozone, the agency ignored the advice of its own scientific advisory panel and sidestepped a 1996 law designed to mitigate the costs of major rules on small businesses. These issues are the driving force behind an NAM lawsuit challenging EPA’s new ozone air quality standard. Two NAM briefs filed 3/23/98 ask the Court of Appeals to throw out the rule.

The NAM briefs noted that EPA’s new standard lacks the scientific support called for under the Clean Air Act and could actually lower health protection. The new standard:

Just as bad, EPA ignored its statutory duty to comply with the Small Business Regulatory Enforcement Fairness Act (P.L. 104-121), which requires agencies to study the potential impacts of major rules on small entities and find ways to mitigate their costs.