Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
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.
To contact the reporter on this story: Jessica Coomes in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)