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Feb. 20 --Federal appeals court judges appeared inclined Feb. 20 to defer to the Environmental Protection Agency's expertise over its decision to tighten air quality standards for fine particulate matter (Nat'l Ass'n of Mfrs. v. EPA, D.C. Cir., No. 13-1069, oral arguments 2/20/14).
Industry groups, including the U.S. Chamber of Commerce and National Association of Manufacturers, are asking the U.S. Court of Appeals for the District of Columbia Circuit to throw out the rule, saying the EPA erred by prejudging the outcome of the rulemaking process and not considering all of the available scientific evidence.
However, Judge Brett Kavanaugh said during oral arguments that he had trouble seeing how the EPA acted unlawfully, given the vast body of scientific evidence that the agency considered. The EPA's actions also were in line with the advice of its independent science advisers on the Clean Air Scientific Advisory Committee, which makes it difficult to argue that the agency acted arbitrarily, Kavanaugh said.
“I'm not sure how we can second-guess this,” he said.
The EPA in 2013 tightened the national ambient air quality standard for fine particulate matter to 12 micrograms per cubic meter (µg/m3), down from the previous standard of 15 µg/m3. The tougher standard eventually could lead to additional pollution control requirements on industry. In addition to the Chamber of Commerce and the manufacturers, the rule is being challenged by the Utility Air Regulatory Group, which represents power generating companies and trade associations, and the PM NAAQS Coalition, which is a group of trade associations.
Under the Clean Air Act, the EPA must review and consider revising ambient air standards every five years. Bill Wehrum, an attorney with Hunton & Williams LLP who represented the petitioners, told the judges that the EPA began the rulemaking process with a foregone conclusion that the rule should be strengthened and didn't seek public comments on retaining the standard of 15 µg/m3. Wehrum also argued that the EPA didn't respond to public comments in which industry highlighted additional scientific studies that supported retention of the existing standard.
Kavanaugh said the D.C. Circuit has held that the agency isn't obligated to give precedence to the old standard. In addition to Kavanaugh, Judges David Tatel and Janice Rogers Brown heard the case. A decision in the case is expected in the coming months.
The industry petitioners also are challenging a provision in the final rule that requires air quality monitors to be placed near roads in urban areas, where pollution tends to be higher than other locations.
Wehrum argued that the EPA's requirement for monitors to be placed near highways won't reflect the actual air quality in an area. He also said the administrative record doesn't show how many people live near roads.
Kavanaugh pressed Eric Hostetler, a Justice Department attorney representing the EPA, on this point. Hostetler replied that the standards are meant to protect all of the public, including those who live near roads.
In addition, Wehrum told the judges the particulate matter standards are invalid because the EPA should have issued implementation rules at the same time it issued the standards, and the agency shouldn't have eliminated spatial averaging, which means states no longer will be able to average results for more than one monitor in a region to determine whether the area has attained the particle standard.
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