D.C. Circuit Upholds EPA's Decision To Retain Sulfur, Nitrogen Air Standards

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By Andrew Childers

May 27 --Federal appellate judges May 27 upheld the Environmental Protection Agency decision to retain the existing air quality standards for sulfur dioxide and nitrogen dioxide.

The U.S. Court of Appeals for the District of Columbia Circuit said the agency was acting within its statutory authority when it chose not to revise the secondary national ambient air quality standards for sulfur dioxide and nitrogen dioxide due to scientific uncertainty about what level of protection was necessary to safeguard the environment.

“Petitioners dispute EPA's conclusion that it lacked sufficient scientific information to make a reasoned judgment, and they argue that, even if EPA was correct, it failed to provide an adequate explanation on that score,” Senior Circuit Judge A. Raymond Randolph said in the opinion. “Decades of decisions in this court stand in the way of these arguments.”

An attorney for the Center for Biological Diversity, which had challenged the rule, could not be reached for comment.

Further Study Needed

The EPA has acknowledged the existing sulfur dioxide and nitrogen dioxide standards are insufficient to protect the environment, but the agency chose not to revise them in 2012 (77 Fed. Reg. 20,218). The agency developed a revised standard to protect the environment from the effects of acid deposition based on maintaining an acid-neutralizing capacity in the environment, but it said further study was needed. Meanwhile, the EPA retained the existing secondary standard for nitrogen dioxide of 0.053 part per million, averaged annually, and the existing standard for sulfur dioxide of 0.5 ppm, averaged over three hours and not to be exceeded more than once annually.

The Center for Biological Diversity, the Clean Air Council and the National Parks Conservation Association sued the EPA, arguing that the Clean Air Act compels the agency to set more protective standards even in the face of scientific uncertainty.

The court dismissed that argument, saying it must defer to the agency's expertise on scientific matters.

“If, as EPA found, the available information was insufficient to permit a reasoned judgment about whether any proposed standard would be 'requisite to protect the public welfare,' promulgating that standard would have been arbitrary and capricious,” Randolph said.

Court Defers to EPA

This decision is the latest in a string of wins for the agency as the court has repeatedly deferred to the EPA's expert judgment.

In April, the D.C. Circuit upheld the EPA Mercury and Air Toxics Standards for power plants, which are among the costliest regulations the agency has promulgated (White Stallion Energy Center LLC v. EPA, 2014 BL 103957, D.C. Cir., No. 12-1100, 4/15/14).

The court also upheld the EPA's revised air toxics standards for cement kilns (NRDC v. EPA, D.C. Cir., No. 10-1371, 4/18/14).

In addition, the D.C. Circuit found the EPA acted reasonably in retaining primary, health-based national ambient air quality standards for carbon monoxide that were first set in 1971 (Communities for a Better Env't v. EPA, D.C. Cir., No. 11-1423, 4/11/14).

In May, the appeals court upheld the EPA decision to tighten air quality standards for fine particulate matter (Nat'l Ass'n of Mfrs. v. EPA, D.C. Cir., No. 13-1069, 5/9/14).


To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl in Washington at lpearl@bna.com

The opinion in Ctr. for Biological Diversity v. EPA is available at http://tinyurl.com/ov6cjg6.

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