The NAM is a member of the Ozone NAAQS Litigation Group, which in 2008 in the U.S. Court of Appeals for the D.C. Circuit challenged the validity of the EPA's final regulation lowering certain ozone limits under the Clean Air Act. The American Lung Association, the Natural Resources Defense Council, and others are also challenging the rule, arguing that the EPA did not follow the advice of their scientific advisers to issue a tougher standard. All the petitions were consolidated under the caption, Mississippi v. EPA.
On 3/19/09, the D.C. Circuit ordered the cases held in abeyance while the new Administration considered whether to change the standards. EPA proposed revisions in January, 2010, for public comment. The NAM filed comments in March (see link below).
On April 4, 2011, the court denied our motion to begin briefing those issues that were not the subject of reconsideration, and refused to order EPA to complete its reconsideration proceeding by the July 29, 2011 date by which EPA indicated it planned to take final action. EPA forwarded a final rule to the Office of Management and Budget in July. Five of the petitioners in this case moved 8/8/11 for a court order directing EPA to complete reconsideration immediately. The NAM coalition opposed this motion because the deadline for EPA to review the 2008 Ozone rule has not yet passed, and it need not act by any specific date. We also asked the court again to renew the briefing on this litigation.
On Sept. 2, President Obama announced that he was requesting that Administrator Jackson withdraw the draft ozone standard at this time. OIRA Administrator Cass Sunstein sent a letter to EPA explaining the reasons that he was sending the proposal back to EPA for reconsideration, including that "a new standard now is not mandatory" and new scientific work is underway and will be based on the best available science. Later that day, EPA filed a notice with the D.C. Circuit saying it "no longer expects that it will take final action to complete its reconsideration of the 2008 ozone NAAQS in the near future." It filed a revised motion to govern further proceedings on Sept. 12, seeking to resume briefing, which the court did.
The Ozone NAAQS Coalition filed its brief on April 17, 2012. Key arguments included: (1) the EPA's finding that increased protection results from a lower standard is insufficient, as a matter of law, to establish that the revision is "requisite" under the statute, (2) new health evidence in 2008 does not materially differ from earlier evidence and does not support revising the standard, (3) the risks now are no greater than they were under the earlier standard, and (4) EPA misrepresented and used selective results from the latest clinical and epidemiological studies.
Our coalition filed a separate brief in July as intervenors in support of EPA defending challenges from environmental groups that the ozone standard is not stringent enough. The NAAQS standard for ozone is now at .075 ppm, and the studies EPA considered in setting this level did not support lowering it below .070 ppm, as demanded by the challengers. A clinical and some epidemiological studies did not produce any statistically significant results for levels below .080 ppm. We also supported EPA's decision regarding exposure and risk assessments.
The NAM filed a reply brief on Aug. 13 reiterating our position that the EPA did not have sufficient evidence in the record to justify its conclusion that the public health risk from ozone was any different in 2008 than it was in 1997 when it set the last ozone standard. It failed to justify why the 1997 standard was no longer “requisite,” as required by the statute, to protect public health with an adequate margin of safety. The agency also failed to rely on air quality criteria that accurately reflect the latest scientific knowledge, and set secondary standards based on the defective primary standard.
The Court issued its decision on July 23, 2013, upholding the primary ozone standard of .075 ppm, but ordering EPA to provide further explanation for its secondary ozone standard, which applies to effects of ozone on such things as animals, vegetation, visibility, property and personal comfort and well-being. With respect to the primary ozone standard, the court applied the usual highly deferential standard of review which courts apply to challenges of regulations. It found that EPA set a standard that is "requisite" to protect the public with an adequate margin of safety, holding that "requisite" protection may change over time with different policy judgments and scientific knowledge. As long as EPA reasonably and rationally explains its actions, the courts will defer to those judgments. The court likewise rejected challenges from environmental groups, saying EPA was in a situation reminiscent of Goldilocks. It upheld the agency's decision, found that it had built in a reasonable margin of safety, and allowed the agency to depart from recommendations of the Clean Air Scientific Advisory Committee because CASAC's opinion was a mix of scientific and policy considerations which EPA could decide differently.