Court throws out exceptions in EPA ozone rule

An appeals court Tuesday overturned two carve-outs that the Environmental Protection Agency (EPA) used to allow states more flexibility in complying with ozone pollution standards.

The 2-1 ruling from the Court of Appeals for the District of Columbia agreed with the Natural Resources Defense Council (NRDC) on both of its challenges to the way the EPA implemented its 2008 standards for ground-level ozone, which contributes to smog and can cause respiratory illnesses.

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In both cases, the EPA went too far in giving states and local areas more slack to comply with rules, and both provisions “exceed the agency’s authority under the Clean Air Act,” the court said.

The regulation from the Bush administration aimed to allow some local areas with the worst ozone levels more time to implement programs and rules to reduce concentration of the substance that is a byproduct of fossil fuel pollutants.

The court also threw out a provision that gave localities more leeway to plan transportation projects, which often increase ozone levels.

“All statutory indications militate against allowing the agency’s lengthening of the periods for achieving compliance with revised air quality standards,” the court wrote of the timing flexibility.

As for transportation projects, “the terms of the statute straightforwardly require maintaining those requirements for affected areas,” it said.

The NRDC had filed the lawsuit in 2012.

The ruling does not affect the underlying 2008 ozone standard, which aims to reduce ozone levels to 75 parts per billion across the country. The EPA proposed last month to update that standards to between 65 and 70 parts per billion.

John Walke, clean air director for the NRDC, called the ruling “an important clean air win.”

The court “voided the EPA’s attempt to let transportation projects nationwide increase pollution greatly beyond permitted levels. And thanks to the court ruling, tens of millions of Americans will not have to breathe unhealthy air for a year longer than what the law allows,” he said in a statement.

EPA spokeswoman Liz Purchia said the agency was reviewing the court’s ruling.