By Jessica Coomes
A federal appeals court July 17 upheld the Environmental Protection
Agency's 2010 air quality standard for nitrogen dioxide (American Petroleum
Institute v. EPA, D.C. Cir., No. 10-1079, 7/17/12). The U.S. Court of Appeals
for the District of Columbia Circuit rejected industry petitioners' claims that
EPA's process for adopting the standard was flawed and resulted in a standard
that was more stringent than necessary to protect public health.
For example, the American Petroleum Institute, the Utility Air Regulatory
Group, and the Interstate Natural Gas Association of America had argued that EPA
discounted a study that called into question the agency's conclusions. But the
court sided with EPA, which said it did not receive the study until late in its
scientific review, and while it did evaluate the study, it found problems with
the methodology and decided not to reopen the review.
In addition, the court rejected claims that EPA relied on non-peer-reviewed
studies, treated the same study differently in reviews for nitrogen oxides and
ozone, and made faulty assumptions in projecting air quality benefits.
Also, the court said it could not consider a statement in the final rule that
said a permit applicant for a new or modified source would have to demonstrate
compliance with the new standard. The D.C. Circuit said the statement did not
constitute a final decision and is not subject to judicial review.
In a statement July 17, Howard Feldman, director of regulatory and scientific
policy at the American Petroleum Institute, said the trade association is
reviewing the ruling and “will determine possible further action.”
“By cherry picking data and relying on questionable science, EPA set the new
regulations at a level more stringent than necessary to protect public health
and is putting our economy and jobs unnecessarily at risk,” Feldman said in the
statement. “EPA relied on unpublished, non-peer-reviewed scientific studies to
set the new standard and outright ignored published scientific studies that
questioned the agency's conclusions.”
The primary, one-hour national ambient air quality standard that EPA set in
2010 is 100 parts per billion.
Mobile sources such as on-road and off-road vehicles are the largest source
of nitrogen oxide air emissions, followed by fuel combustion and other
industrial sources, according to EPA.
Nitrogen oxides react with ammonia, moisture, and other compounds to form
fine particulate matter, which has been linked to respiratory diseases such as
emphysema and bronchitis, and can aggravate existing heart disease. Nitrogen
oxides also react with volatile organic compounds in the presence of sunlight to
form ozone, which has been linked to asthma, respiratory diseases, heart
disease, and premature death.
Senior Circuit Judge Douglas Ginsburg wrote the opinion. The other judges who
heard the case were Judith Rogers and Harry Edwards.
The Natural Resources Defense Council intervened in the case on behalf of
The D.C. Circuit decision in American Petroleum Institute v. EPA is
available at http://tinyurl.com/7to2w9q.