D.C. Circuit Rejects Industry Challenges to EPA Nitrogen Dioxide Standard

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.

API Reviewing Ruling to Determine Action

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 “EPA relied on unpublished, non-peer-reviewed scientific studies to set the new standard and outright ignored published scientific studies that questioned the agency's conclusions.”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 EPA.

By Jessica Coomes  

The D.C. Circuit decision in American Petroleum Institute v. EPA is available at http://tinyurl.com/7to2w9q.