D.C. Circuit Asked to Reconsider Decision Upholding EPA Sulfur, Nitrogen Standards

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By Patrick Ambrosio

Oct. 8 — Three environmental groups have asked a federal appeals court to reconsider a lawsuit challenging the Environmental Protection Agency's secondary national ambient air quality standards for sulfur dioxide and nitrogen dioxide because the agency no longer plans to conduct a study to address scientific uncertainties (Ctr. for Biological Diversity v. EPA, D.C. Cir., No. 12-1238, petition for rehearing filed 10/7/14).

The Center for Biological Diversity, the Clean Air Council and the National Parks Conservation Association, in a petition for rehearing filed Oct. 7, asked the U.S. Court of Appeals for the District of Columbia Circuit to remand the matter to the EPA and require the agency tospecify alternative actions to meet its statutory duties under the Clean Air Act to protect the environment from the effects of acid rain resulting from concentrations of sulfur dioxide and nitrogen dioxide.

The D.C. Circuit in May upheld the EPA's 2012 decision to retain the existing air quality standards for sulfur dioxide and nitrogen dioxide, determining that the agency was acting within its statutory authority Ctr. for Biological Diversity v. EPA, 749 F.3d 1079, 2014 BL 145307 (D.C. Cir. 2014).

The agency concluded in 2012 that the current standards are insufficient to protect the environment, but determined that it didn't have sufficient data to ensure that revised standards would protect the environment. At that time, the agency said it needed to conduct a five-year field pilot program to collect data to inform the development of future air standards.

No Funding for Pilot.

The petition includes both internal agency documents obtained through a Freedom of Information Act request and an e-mail statement from the agency that the petitioners say indicate that the EPA has withdrawn its commitment to conduct the pilot study.

In the May 28 statement, e-mailed to a reporter by an EPA spokeswoman, the EPA said the planned pilot study wasn't funded in fiscal year 2013 due to automatic discretionary spending cuts implemented under the sequester. The statement also said the agency “has not yet determined whether the pilot is still the best approach in light of the new science and data” available to the agency since it completed its previous review of the secondary air standards.

The D.C. Circuit based its ruling in part on the EPA's representation that the agency was going to conduct the pilot program, according to David Baron, an attorney with Earthjustice who is representing the petitioners. The petition notes that evidence shows the EPA decided prior toOctober 2013 oral arguments in the lawsuit that the pilot study wouldn't be funded.

Baron told Bloomberg BNA Oct. 8 that if the EPA isn't going to do the study, the agency needs to do something else to address the uncertainty that prevented the agency from revising the air standards.

“They (the EPA) need to devise a plan that will get them whatever information they think they need,” Baron said.

Baron said that the petitioners haven't changed their view that the EPA has sufficient information to justify setting more stringent standards for sulfur dioxide and nitrogen dioxide, an opinion that he said was shared by both EPA staff and independent science advisers during the last review.

Panel to Review Petition.

Baron said the petition for rehearing will be reviewed by the same D.C. Circuit panel that heard the initial lawsuit, which was made up of Judges Brett Kavanaugh, David Sentelle and A. Raymond Randolph.

If the judges think the petition for rehearing warrants further consideration, they will ask the EPA to respond, Baron said.

The EPA told Bloomberg BNA in an Oct. 8 e-mail that the agency has provided information to the court.