Judges skeptical of case against Obama smog rule

Federal judges on Tuesday expressed skepticism at a challenge by industry groups and Republican states against the Obama administration’s major 2015 regulation on smog-forming ozone pollution.

Central to the challengers’ arguments, presented Tuesday to the Court of Appeals for the District of Columbia Circuit, is that the Environmental Protection Agency (EPA) should have been more lenient in its 2015 rule because some states and areas have high ozone levels either naturally or because of pollution blows in from elsewhere — factors that they cannot control.

“Our case is about the requirement of a reasoned rulemaking process. And here, that process was deficient,” Dominic Draye, solicitor general for Arizona Attorney General Mark Brnovich (R), told the judges. Draye spoke for the states and industry groups suing the EPA.

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He pointed to various places in the Clean Air Act that provide for different considering of areas that have high levels of “background” pollution.

“I think they’re evidence that states are not supposed to be on the hook for ozone that they can’t control. That’s why it’s carved out.”

But at least two of the judges were doubtful.

“What in the statute requires EPA to take into account background ozone when establishing the NAAQS [National Ambient Air Quality Standards]? Is there anything in the statute that requires that,” asked Judge Thomas Griffith, who President George W. Bush nominated to the court.

He later suggested that the argument to take into account background ozone had “already been rejected” by the D.C. Circuit Court.

Judge Nina Pillard, nominated by President Obama, was more direct in her skepticism.

“The idea is that the dominant requirement of the statute is to set levels that protect the public health. And if it’s really impractical, the agency’s not allowed to say ‘ok, let’s harm a bunch of people because it would be really hard to move forward without allowing a lot more ozone’” Pillard said during Draye’s presentation.

“The idea is that, whether it’s caused by background ozone in part is not going to be the basis for a discount,” she continued.

The three-judge panel was rounded out by Judge Robert Wilkins, an Obama nominee, who gave few hints about his opinion on the matter.

Simi Bhat, a Justice Department attorney representing the EPA, told the judges that the 2015 rule followed the law.

“The Clean Air Act does not require EPA to raise the NAAQS because of background pollution. What the Clean Air Act requires is that EPA set a NAAQS that is requisite to protect public health and welfare,” she said.

“State and industry petitioners’ argument would deny necessary protection to millions of Americans across the country, when the record shows that only a few areas may experience high-background-ozone events.”

The regulation at issue is one of the most expensive of the Obama administration. Industry groups opposed to it say it would cost well over $1 trillion to implement.

Ozone is created from various fossil fuel pollutants. It is linked to respiratory ailments like asthma attacks, and is one of the components of smog.

The 2015 rule, written under then-Administrator Gina McCarthyRegina (Gina) McCarthyOvernight Energy: Dems subpoena Perry in impeachment inquiry | EPA to overhaul rules on lead contamination tests | Commerce staff wrote statement rebuking weather service for contradicting Trump Hundreds of former EPA officials call for House probe, say agency's focus on California is politicized It's time for Congress to address the 'forever chemical' crisis MORE, lowered the allowable ground-level ozone concentration to 70 parts per billion, from the previous 75 parts per billion.

When Scott PruittEdward (Scott) Scott PruittSierra Club sues EPA over claim that climate change 'is 50 to 75 years out' EPA on 'forever chemicals': Let them drink polluted water EPA moving ahead with science transparency rule by 'early next year' MORE took over as EPA chief under President TrumpDonald John TrumpTrump says he doesn't want NYT in the White House Veterans group backs lawsuits to halt Trump's use of military funding for border wall Schiff punches back after GOP censure resolution fails MORE, the agency had the court pause the case for a year while it considered whether to try to change the ozone rule or defend it in court. Officials ended up concluding that they would defend it.

The EPA is obligated to consider strengthening the ozone rule every five years. The Trump administration has already started the process for the 2020 review.

At the same court argument Tuesday, the judges heard from environmentalists, led by Earthjustice, who argued that the 2015 rule was not strict enough.

Their case centered on standards like how to protect plants from ozone pollution and what method to use to measure the pollution.

“And EPA’s own calculations show that hundreds of thousands of children will experience dangerous exposures in dangerous ways in any given year,” said Seth Johnson, an attorney with Earthjustice.

“EPA hasn’t rationally concluded here that the standard meets its obligations of preventing adverse health effects.”

The judges gave few signs of their leanings in the greens’ complaint. Nonetheless, Griffith grilled Justice Department attorney Justin Heminger on why the EPA didn’t follow some advice of its panel of external advisers, like on whether to use three-year averages or one-year averages for measuring pollution levels.

“So what is the justification for going against the [advisers’] recommendation? Whenever that happens, there’s a special burden on the administrator to explain what she’s doing,” he asked.

Heminger argued that the agency did listen to that advice, as shown in the protection standards for trees, among other places.

“The administrator clearly considered that advice,” he said.