Trump EPA’s Ozone Delay Request Leans on Obama Precedent

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By Patrick Ambrosio

The Trump administration’s request to halt litigation over federal ground-level ozone standards relies on a recent precedent: President Barack Obama’s EPA successfully requested the same thing during his first few months in office.

The EPA asked the U.S. Court of Appeals for the District of Columbia Circuit, in a motion filed late April 7, to delay the scheduled April 19 oral arguments over the ozone standards, set in October 2015. The agency cited the “inherent authority” of federal agencies to reconsider past decisions and the D.C. Circuit’s 2009 decision to halt litigation to allow the Obama administration to review ozone standards issued under President George W. Bush.

The EPA wants more time to review the Obama-era ozone standards, according to an agency spokeswoman. The 70-parts-per-billion ozone standards are subject to dueling challenges. Public health organizations argued the standards aren’t adequately protective of public health while industry organizations and some states alleged the standards are illegally unachievable because they are set too close to background levels.

“Given the broad-reaching economic implications of the 2015 ozone standard, we are carefully reviewing the rule to determine whether it is in line with the pro-growth directives of this administration,” the spokeswoman told Bloomberg BNA in an email.

The EPA declined to comment on whether it was still working on the next step in implementing the 2015 ozone standards, which is deciding which parts of the U.S. do and don’t meet the standards. Parts of at least 22 states were identified as unlikely to meet the standards, which would trigger strict permitting requirements on new industrial development in those areas, according to a 2015 Bloomberg BNA survey of state environmental agencies.

Advocates: Delay ‘Hugely Inefficient’

The federal government’s request for delay is opposed by a coalition of environmental and public health organizations, including the American Lung Association and the Natural Resources Defense Council, who argued in an April 10 filing that a delay would be “hugely inefficient” because the litigation is already fully briefed and counsel is preparing for argument ( Murray Energy Corp. v. EPA , D.C. Cir., No. 15-1385, opposition brief filed 4/10/17 ).

Seth Johnson, an Earthjustice attorney representing those organizations, noted that unlike the Trump request, the Obama administration asked the court to halt progress in the very early stages of the past ozone litigation.

“The timing is significantly different,” Johnson told Bloomberg BNA. “They [the Obama administration] didn’t ask eight business days before the argument.”

Johnson said that if the Trump administration wants to change the ozone standards, they can do so as part of the Clean Air Act’s required periodic reviews of national ambient air quality standards. The next review is mandated by law to be completed in October 2020, which is within Trump’s term, Johnson said.

Court Scrapped Climate Argument

While environmental advocates are opposing the EPA’s request, an ex-Justice Department official told Bloomberg BNA that it is “quite typical” for courts to remove cases from the argument calendar if a new administration wants time to review a decision made by the previous administration.

Thomas Lorenzen, who worked in the Justice Department’s Environment and Natural Resources Division from 1997-2013, acknowledged that the Trump administration’s request differs from the Obama EPA request on ozone since that case hadn’t been briefed at the time. However, Lorenzen, now a partner at Crowell & Moring LLP, said the D.C. Circuit’s recent decision to postpone arguments on a fully-briefed Obama-era climate rule is the more “useful model” for the new ozone request.

The D.C. Circuit in March canceled previously scheduled April 17 arguments over a carbon emissions rule covering new power plants in response to an executive order that directed the EPA to reconsider that regulation. Lorenzen represents the National Rural Electric Cooperative Association in that litigation ( North Dakota v. EPA , D.C. Cir., No. 15-1381, 3/30/17 ).

With respect to the 2015 ozone standards, Lorenzen said it’s important to recognize that the EPA hasn’t yet determined its position on the ozone standards, leaving open the possibility that new political leadership at the agency and the Justice Department could determine that they want to defend the rule after the review is complete.

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

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

For More Information

The EPA's motion in Murray Energy Corp. v. EPA is available at: http://src.bna.com/nNG.

The public health and environmental coalition's opposition brief is available at: http://src.bna.com/nNQ.

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