Ozone Review Could Be Part of Larger Energy Policy Overhaul

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By Patrick Ambrosio

The EPA directive to review regulations that hamper domestic energy production did not specifically target ozone pollution standards, but the agency’s ongoing review of the Obama-era requirements could aim to do away with pollution control and permitting requirements opposed by the energy sector.

The Environmental Protection Agency has not yet said whether it will formally reopen the 70 parts per billion ozone standards, but a federal appellate court agreed April 11 to postpone oral arguments over the regulation to allow for the agency's review. The EPA in its court filing seeking the delay had indicated that it is taking a look at the ozone standards to determine whether the regulation is subject to a March 28 executive order that instructed the agency to review any existing rules that could “potentially burden” domestic energy production ( Murray Energy Corp. v. EPA, D.C. Cir., No. 15-1385, 4/11/17 ).

“This would fit right into that review … ozone is very tied into the power sector,” said James Rubin, a partner at Dorsey & Whitney LLP who previously worked on environmental issues at the Justice Department.

Any effort by the Trump administration to roll back the 2015 ozone standards would be fiercely opposed by environmental advocates. But attorneys told Bloomberg BNA that a formal reconsideration of the ozone rule would fit in with the Trump administration’s focus on easing regulation on the coal, oil and natural gas sectors.

While the ozone standards don’t target any particular sector for pollution reductions, the permitting and pollution-reduction requirements associated with failure to meet the standards can effect power plants, refineries and downstream oil and gas operations. For example, Utah recommended that the EPA label the Uinta Basin as a nonattainment area under the 2015 standards, a designation that could trigger various emissions control requirements on an area with thousands of active oil and gas wells.

"[Ozone] is a rule that could potentially have negative implications for energy production in this country,” Thomas Lorenzen, a partner at Crowell & Moring LLP in Washington, D.C., told Bloomberg BNA.

Part of Broader Energy Effort

Lorenzen, who also previously served at the Justice Department and who represents the National Rural Electric Cooperative Association in litigation over Obama-era climate regulations covering utilities, told Bloomberg BNA that a review of the ozone standards is “of a piece” with other environmental actions taken early in the Trump administration. In addition to initiating a reconsideration of the climate rules for power plants, the Trump administration also reopened coal leasing on federal lands and is looking at potential changes to methane standards covering the oil and gas industry.

The 2015 ozone standards are opposed by a number of energy industry organizations, including the American Petroleum Institute and coal company Murray Energy Corp. Industry challengers, as well as several states, argued in court briefs that the Obama-era regulation is illegal because the standards are so strict that they are impossible to meet in certain parts of the U.S.

Those challengers now seemingly have an ally at the EPA: Administrator Scott Pruitt was involved in challenges to the ozone rule while serving as Oklahoma attorney general.

Advocates Plan Defense

While Pruitt may be sympathetic to industry arguments, any effort to change the ozone standards will be met with fierce opposition from environmental and public health groups that argue the current standards are still too lenient to protect the public. The environmental and public health advocates unsuccessfully opposed the EPA request to delay the scheduled ozone arguments, a request that they said came too late and would be "hugely inefficient" given the time spent writing briefs and preparing for arguments.

If the EPA were to decide to reconsider the ozone standards, advocates would make the case to the EPA, Congress and the public that the science supports an even stronger standard than 70 ppb and shouldn’t be weakened, John Walke, director of the climate and clean air program at the Natural Resources Defense Council, told Bloomberg BNA. Former EPA Administrator Gina McCarthy set the standards at 70 ppb after determining that the previously 75 ppb standard wasn’t adequate to protect public health.

Walke noted that the EPA has an “awful track record” in the courts on decisions where it departs from the advice of the Clean Air Scientific Advisory Committee, a panel that recommended the EPA consider setting the ozone standards within a range of 60 ppb to 70 ppb. Any reconsideration effort that aimed to set less-stringent standards would need to justify departing from that scientific advice.

Rubin acknowledged that the administration “will have some work to do” to address those scientific findings if reconsideration proceedings are initiated, but he said he wouldn’t be surprised if the EPA decided to pursue that given the the number of industry interests that oppose it. In addition to the power sector, the ozone standards also are opposed by the National Association of Manufacturers, the American Chemistry Council, the U.S. Chamber of Commerce and various other industry organizations.

To contact the reporter on this story: Patrick Ambrosio in Washington, D.C. at PAmbrosio@bna.com

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

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