Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

As Greenwire reported, the Inspector General of the EPA recently released a report criticizing how the agency followed (and deviated from) procedures in publishing the Technical Support Document that underpinned its December 2009 Endangerment Finding.  The IG was instructed to conduct this review at the order of Senator Inhofe (R-OK), the ranking Republican on the Senate Committee on Environment and Public Works.  The review, which cost nearly $300,000, examined only whether EPA followed its own procedures and those of the Office of Management and Budget (OMB), and did not analyze the validity of the scientific or technical information used to support the endangerment finding.  Although news of the report is likely to reinvigorate GOP criticism of the endangerment finding and the climate change regulations that followed, the IG repeats throughout the report that it is an evaluation of data quality procedures, not the quality of the data itself or the conclusions that EPA reached.  Plus, as EPA highlighted in its response to the IG's report, the peer-reviewed studies conducted since the endangerment finding only serve to strengthen the validity of the science that EPA relied upon.

The key conclusion the IG reached is that the Technical Support Document (TSD), in which EPA summarized the results of the leading scientific assessments on climate change, did not meet the OMB’s peer-review requirements. The problem turns on whether the TSD was a “highly influential scientific assessment” -- defined in the OMB regulations as an assessment that could have an impact on the public or private sector of more than $500 million in one year or is novel, controversial or precedent setting.   Such assessments require more attention to peer review, and agencies have to follow specific peer review procedures laid out by the OMB and certify that they have done so. 

The IG concluded the TSD was a "highly influential scientific assessment" because EPA weighed the strength of the available science and chose what information to include.  In summarizing the world of data down to a manageable document, the IG argues, EPA made choices that qualify as science. EPA officials, on the other hand, argue that the TSD does not meet this threshold, since it does not contain any new science or conclusions.  Instead, it's more of an annotated bibliography, summarizing findings from prior studies, all of which had been extensively peer-reviewed. 

The EPA’s Peer Review Handbook allows use of already-peer-reviewed studies to support EPA decisions, so long as the EPA checks to see whether the earlier peer review meets its standards. The IG criticizes that EPA didn’t certify to this double-checking in any of its publicly released documents.  Additionally, although the EPA did have the TSD reviewed by a panel of 12 climate change scientists before publishing it, the IG concludes that this did not meet the OMB requirements for a “peer review” because the review results and EPA response were not publicly reported, and one of the twelve panelists was an EPA employee.   

The story that EPA failed to follow its own procedures in analyzing the science behind this critical decision certainly reads well, and could be very potent fuel to add to anti-EPA rhetoric.  But my conclusion is that this dispute seems manufactured, or at the very least, far too focused on form over function and style over substance. Although the quality of data in science is a real issue, the primary issue here seems to be that EPA could have been better at showing its work, rather than a question of whether it, or the world's climate scientists, did the work to begin with.  

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The abandonment of any discussion of climate change in Washington has not been followed in Massachusetts. Yesterday, Rick Sullivan, the Secretary of Energy and Environmental Affairs, released the Massachusetts Climate Change Adaptation Report, providing the fruits of a lengthy process in Massachusetts to look at the impacts of climate change on five areas: Natural Resources and Habitat; Key Infrastructure; Human Health and Welfare; Local Economy and Government; and Coastal Zone and Oceans. 

Certainly, the summary of potential impacts in Massachusetts is not a pretty picture – speaking metaphorically, anyway; many of the pictures in the report actually are pretty cool. For those who want a quick idea, take a look at the 100-year flood in downtown Boston under the high emissions scenario, on page 20 of the Report.

The trick is in choosing adaptation strategies that are cost-effective in the face of some substantial uncertainties. To give them credit, the Report’s authors are aware of the difficulties. We’ll see what happens when regulators start to consider concrete implementation of particular strategies that may limit development in certain areas or impose additional costs or requirements.

While the Report is too long to summarize here, a few highlights are worth noting:

*  An emphasis on combining mitigation and adaptation – look for more requirements to use low impact development approaches and to meet LEED building standards

*  A recommendation to increase buffer zones – do we take land out of development because it may be needed for flood control in 50 years?

*  Assessment of ways “to discourage and avoid siting in current and future vulnerable areas.” How do we decide what constitutes a vulnerable area and over what time horizon? Do we forbid construction? Require extensive insurance and rely on the market to control investment?

*  Consideration of the development of guidance “to fully implement” existing requirements that new buildings for “non-water-dependent uses” under Chapter 91 “be designed and constructed to … incorporate projected sea level rise during the design life of buildings.” Given existing requirements to devote the ground floor of such buildings to “facilities of public accommodation”, perhaps we could simply require owners to devote the first floor to salt water swimming pools!

Levity aside, this is serious stuff. The projections are certainly scary. That doesn’t make the regulatory decisions easy, however. Decisions regarding time horizons, discount rates, and how much to rely on regulations versus market incentives will be difficult, but getting them right will be critical to ensure that appropriate adaptations are made without adapting ourselves out of all economic growth.

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The public perception is that big, bad corporations can just spend as much money as necessary to win in court. Those of us in the trenches know that the reality differs. Indeed, at least with respect to actions brought by government environmental agencies, the most common defense experience is for the DOJ attorney to introduce him or herself by saying. “Good morning, your Honor, my name is ________. I represent the government, and I win.”

In a bench ruling earlier this month, in what are known as the “delta smelt” cases, Judge Oliver Wanger demonstrated – much to his own dissatisfaction, I may add – just how stacked the deck is in favor of the government. The issue in the case involved the terms of an injunction to protect the delta smelt and, specifically, where along the length of the Sacramento River, salt water intrusion has to be stopped. Not surprisingly, this question involves complex expert testimony. 

The government had two experts, Mr. Feyrer, for the Bureau of Reclamation, and Dr. Norris, for the Fish & Wildlife Service. To put it mildly, Judge Wanger was not happy with either expert. He described Dr. Norris’s testimony as “false”, “outrageous”, and “contradicted by her own testimony.” With respect to Mr. Feyrer, Judge Wanger referred to his “absolute incredibility, his absolute unreliability, and finally, the most significant finding, the Court finds him to be untrustworthy as a witness.”

Here’s the Judge's summary:

            The conclusion that the Court reaches is that this testimony particularly with the contradictions, with the revisionist and opportunistic opinions that are now offered totally impeaching, it’s self-impeaching and contradictory, both Mr. Feyrer and Dr. Norris. They lack credibility. They are the equivalent of bad faith.

            The Court finds agency bad faith here. There simply is no explanation. There is no justification. And again, the government wins.

***

            I’m not going to just junk the … standard and in a peak [pique?] of disappointment with the government’s because just your scientists can’t be honest and can’t be straight and can’t serve the public interest, that we’ll just throw the baby out with the bath water. That’s not going to happen. This species is in trouble. It still needs to be protected.

So, Judge Wanger, tell us what you really think. Elsewhere in the opinion, Judge Wanger described Dr. Norris as a “zealot.” I don’t think that that term will surprise anyone who has worked on environmental cases. We have all seen lawyers and experts who knew God was on their side and that they were therefore justified in engaging in the kinds of behaviors described by Judge Wanger. 

I am not involved in the delta smelt case and thus don’t know if Judge Wanger’s conclusions about the expert testimony are reasonable. I do know that, having reached the conclusions he did, it is admirable that he was still able to focus on the law and the facts and that he still left in place most of what the government wanted by way of an injunction.

If you’re on the defense side, just be prepared for that opening by the government.

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Last year, I compared EPA’s Interim Guidance on Considering Environmental Justice During the Development of an Action to Rube Goldberg – and that was only EJ Guidance on Rulemaking. Now EPA has issued its comprehensive Plan EJ 2014. I still find the resources devoted to this subject by EPA and the convolutions it is going through to analyze the issue to be stunning.

I also still think that my simple analysis from last year is not too simplistic. Here’s the way EPA’s job is supposed to work:

1.         Congress passes environmental protection laws for EPA to implement.

2.         Those statutes generally provide for EPA to set standards with something like “an adequate margin of safety.”

3.         EPA does its job.

There are two significant theoretical issues which could give rise to legitimate concerns about disparate environmental impacts. One is if, as a result of political disenfranchisement, what are known as EJ communities cannot adequately participate in the environmental regulatory process. I don’t doubt that this happens, though I’m skeptical about how often and statistics about the number of solid waste transfer stations in poor or minority communities doesn’t make the case for me. In any case, the broad issue is beyond the capability of EPA to solve and it shouldn’t try. That’s what the Civil Rights Act is for. Moreover, a significant piece of the problem is addressed just by increased disclosure and transparency that is happening anyway, through developments in the electronic, i.e., web-based, dissemination of information.

The other concern frequently raised is the one of cumulative impacts, and it receives a lot of attention in Plan EJ 2014. That one, I really don’t buy. Cumulative impacts are already addressed as appropriate in the EPA organic statutes. That’s what nonattainment with NAAQS and resulting state implementation plans are all about. If an area is in compliance with the NAAQS, that should be the answer. If they are not, everyone contributing to that exceedance gets ratcheted down. If the NAAQS is not sufficiently protective (ozone, anyone?), lower it. The same is true for the Clean Water Act. That’s what water quality criteria and the TMDL process are for. If a water body complies with WQCs, it should be considered safe. If not, dischargers into that water body get ratcheted down. 

I could continue, but I won’t. 

My final pet peeve about EJ is the continuing discussion regarding what Plan EJ 2014 calls “equitable development and place-based initiatives.” As I noted in another post on the EJ issue, EPA is, to put it lightly, somewhat optimistic when it thinks that its EJ efforts can help spur economic development in EJ communities. EJ can be used to say no to economic development in poor or minority communities, but it cannot say yes. EPA cannot make capital go where it does not want to go. 

Prudent developers work with communities. They don’t need EJ rules to tell them that local support is better than local opposition. However, ask those developers most known for working with local communities and I doubt you’d find one who thinks that EPA or state or local EJ rules or guidance help facilitate development in any way, shape, or form.

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 The Virginia Supreme Court decided on Friday that an insurer does not have a duty to defend its insured in the face of a climate change nuisance case, because intentional emissions, even if they have unintended results, are not an "accident" under the insurance policy.  The case, AES Corp v. Steadfast Insurance Company, had been closely watched as the first of its kind, pitting the new breed of climate change defendants against their insurers.  

AES Corporation is a defendant in Native Village of Kivalina v. ExxonMobil Corp., which alleges that the utility's emissions contributed to the rising sea levels that are endangering the Alaskan village, located on a barrier island.  That suit was originally dismissed in 2009 on the grounds that regulating greenhouse gas emissions was a political issue that needed to be resolved by Congress, rather than by courts, and an appeal is pending before the 9th Circuit Court of Appeals.

Steadfast Insurance Company, which was defending AES under a reservation of rights, filed this suit, seeking a declaratory judgment that the commercial general liability policies AES held did not require it to provide insurance coverage.  The Virginia Supreme Court upheld the decision of the lower court, finding that Steadfast owes no duty to AES because the allegations in the Kivalina complaint do not constitute an "accident" or "occurrence" within the meaning of the policies.

AES had argued that Steadfast's duty was triggered because the plaintiffs in Kivalina accused it of negligence -- the classic event that triggers CGL policies.  However, the language of the policy required Steadfast to defend AES against claims for damages of bodily injury or property damage caused by an occurrence or accident, with "occurrence" defined as "an accident, including continuous, repeated exposure to substantially the same general harmful condition."   The court found that the Kivalina lawsuit did not meet this definition, because the complaint alleged that the utility intentionally emitted carbon dioxide, and knew or should have known that the impacts of its emissions would lead to global warming and effect vulnerable communities like this coastal Alaskan village. 

The Virginia judge found that, even if AES was ignorant of the effect of its actions and did not intend to cause harm, Kivalina still alleges that the damages were a natural and probable consequence, not a fortuitous event or accident, as Virginia law requires for insurance coverage to be triggered.  Consequently, the judge concluded that, "whether or not AES's intentional act constitutes negligence, the natural and probable consequence of that intentional act is not an accident under Virginia law."

It is important to remember that, since insurance cases are decided under state law, this decision applies only to Virginia and this particular policy, and it remains to be seen whether other courts will follow the same rationale.  As plaintiffs bring new climate change claims under state tort law and based on creative legal theories, other courts may reach different conclusions about whether the unintended effects of intentional emissions can ever be an "accident." 

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 In the Carbon Disclosure Project's 2011 analysis of the largest 500 companies, the Global 500, there is a very interesting statistical trend -- the companies who were the most strategically focused on accelerating low-carbon growth had returns from January 2005 to May 2011 that doubled the Global 500 as a whole, with returns totaling over 85%, compared to the 42.7% returns for the index.  Even more amazingly, the 13 companies that had been recognized by CDP for this strong focus for the last 3 years outperformed the Global 500 by over 60 percentage points over the same period.  Does monitoring and disclosing a company's carbon footprint and incorporating the risks and opportunities of climate change at executive levels actually lead to increased financial performance?  This report suggests there is a high correlation, at least. 

The report analyzes the responses the Global 500 companies submitted to a questionnaire that has CDP has sent on behalf of institutional investors every year since 2002.  Participation has increased each year -- up to 81% for 2011 -- as has the quality of the companies' answers and reporting, and the targets and goals that companies set for themselves.  This year's results show significant progress by all of the reporting companies in a few key areas, such as 74% of respondents setting greenhouse gas reduction targets, and 59% reporting a payback period of 3 years or less on their emission reduction activities. This year's survey also marked the first time that a majority (68%, up from 48% in 2010) of respondents have integrated carbon reduction efforts into the heart of their business strategies.

The set of 58 companies that doubled the returns of their peers were listed by CDP as part of the Carbon Disclosure Leadership Index (CDLI) (those that scored the highest on carbon emission measurement techniques and subsequent public disclosure) and Carbon Performance Leadership Index (CPLI) (those that fell within the top 10% of respondents when scored on strategic commitment to the business issues related to GHG emissions, energy use, and climate change).  There were 23 companies who made both lists.  Companies in Canada, Japan and the US were under-represented on these lists, compared to their peers in Australia, Germany, Italy, Switzerland and the U.K.  Surprisingly, given the regulatory focus it faces, the energy sector lags behind other sectors with the lowest proportion of companies setting targets (55%) and under-representation on both the CDLI and CPLI.

What did the CDLI and CPLI companies do differently?  As the report highlights, one notable difference between the companies named to the CDLI and those that were not is the practice of setting emissions reduction targets on which the company places significant emphasis -- 96% of the CDLI companies have emissions reduction targets, versus just 70% of the remaining companies.  Also significant seems to be whether the companies dedicated resources and time to identifying the new opportunities, investments and potential partnerships that a low-carbon economy could bring about -- the average score for the CDLI companies on this rubric is 88 (out of 100) compared to 54, across all respondents.  Similarly, all 29 of the CPLI companies have integrated their climate-related risks and opportunities into their business strategy, and used monetary incentives to encourage employees to meet carbon reduction goals.  The CPLI companies also universally submitted their emissions data for adequate verification -- something that only 37% of the remaining companies did, despite the importance of providing investors validated data.

Although the authors of the report argue that this data is a clear indicator that it makes good business sense to manage and reduce carbon emissions, correlation is not necessarily causation.  The companies who are better managing their carbon may just be better managed overall, leading to better performance.  Either way, the fast-rising number of Global 500 companies who are moving to capitalize on these opportunities highlights that more sustainable business models are, increasingly, simply the way business is done.

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In an interesting decision issued today, in Zoning Board of Appeals of Holliston v. Housing Appeals Committee, the Massachusetts Appeals Court held that a local zoning board of appeals cannot use vague local environmental concerns as a basis for denying a comprehensive permit under the Massachusetts affordable housing statute, Chapter 40B. As those practicing in this area know, Chapter 40B consolidates all local permitting before the zoning board of appeals. The board can deny permits based on local needs, but there is a presumption that the need for affordable housing trumps local needs if the stock of affordable housing is less than 10% of total housing in the municipality.

There is no dispute that the stock of affordable housing was less than 10% in Holliston. Nonetheless, the ZBA in Holliston denied on the project, asserting environmental concerns about existing contamination, wetlands protection, and stormwater. The essence of the case was that, as the Court noted, plans submitted to the ZBA are generally preliminary. Details get filled in later. Here, the developer basically said that it would comply with Chapter 21E and the Massachusetts Contingency Plan and obtain a condition of no significant risk, and that it would comply with the Wetlands Protection Act and stormwater requirements and subject its detailed plans to review by the local Conservation Commission and DEP at a later date. The Town said that this was not sufficient. 

Judge Kafker (a former Foley associate, I feel compelled to note) made short work of the Board’s arguments. With respect to the contamination, the Court noted that there in fact is no local by-law that even purports to regulate the scope of remedial work. Since the ZBA review is limited to local concerns, it essentially was without jurisdiction to review the remedial plans. 

With respect to wetlands and stormwater, Holliston has a local bylaw and regulations that are more stringent than the state requirements. However, as the Court noted, the Board “failed to demonstrate that the safeguards the local by-law provides to wetlands interests over and above the protections afforded by the WPA outweigh the community’s need for low or moderate income housing.” Noting that Chapter 40B “curtails” local authority, the Court provided the coup de grace:

It is not enough to simply point out a lack of compliance with local regulations or complain that the local board’s power has been taken away. The board must show that the impacts on the local wetlands outweigh the local need for affordable housing.

The notion that 40B trumps local by-laws is not new. However, this case is the most comprehensive analysis that I have seen regarding the interplay between Chapter 40B and local environmental regulations. The short answer? Local environmental bylaws and regulations do not justify a NIMBY denial of affordable housing projects.

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Following EPA’s decision last week to scrap its reconsideration of the 2008 ozone National Ambient Air Quality Standard, the parties to the litigation challenging the 2008 standard are back in court. This week, EPA submitted a brief to the Court of Appeals, which was pretty much a six-page version of Roseanne Roseannadanna’s “Never mind.” After telling the Court for years that it should defer to EPA’s reconsideration process – a decision on which was always just around the corner, until EPA decided it wasn’t – EPA has now told the Court that it is time to brief the merits of the challenges to the 2008 standard of 0.075 ppm.

As I noted last week, EPA has already made the argument that the Court of Appeals does not have jurisdiction in this case. If that argument fails, I cannot wait to see what argument EPA will make on the merits. The Clean Air Science Advisory Committee said that 0.075 ppm was not sufficiently stringent, the Court of Appeals has said that EPA cannot willy-nilly ignore CASAC, and EPA itself pretty much said in 2010 that the standard cannot be any higher than 0.070 ppm. I don’t envy the DOJ lawyers who will be writing that brief.

The problem for the environmental group challengers is whether there is any practical remedy at this point. The Court cannot promulgate its own NAAQS. All it can really do is impose a schedule on EPA to correct the 2008 standard. It doesn’t take much analysis to conclude that there is likely no reasonable deadline the Court could impose that would result in a new ozone standard any earlier than the 2013 date towards which EPA is already pointing. I foresee some awkward moments for the DOJ lawyers and some very firm finger-wagging by the Court, to the effect of “We really, really expect you to issue a new standard in 2013.”

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The Regional Greenhouse Gas Initiative (RGGI) celebrated its third anniversary by holding its 13th quarterly auction of carbon dioxide allowances on Wednesday.   As today's Market Monitor report highlights, although the number of bidders was up, the percentage of allowances purchased was down.  Thirty-one bidders purchased just under 18% of the 42,189,685 current compliance period allowances offered for sale by the 10-state group (including New Jersey).  These allowances, with vintage dates from 2010 and 2011, can be used by electric generators in the current compliance period, which will end in December.  The previous low for demand for these allowances dates from the last auction in June, where 25 bidders bought only 30% of the available allowances, also at the floor price of $1.89.  

The states other than New Jersey then held an auction offering 1.8 million allowances from vintage year 2014, which can be used to comply in the next compliance period, from 2012-2014.  In perhaps the most direct sign of uncertainty for the future of RGGI, no one bid on these allowances. 

Per the Market Monitor report, there were not any market barriers to bidding in the auction of future compliance period allowances.  Bidders were just not interested.  The future of RGGI could seem  uncertain to would-be-bidders, between member states' reconsidering their involvement -- for instance, New Hampshire's Senate recently failed to overturn a veto by the Governor of a bill that would have removed the state from the program -- and RGGI, Inc.'s ongoing comprehensive review of the program for the new compliance period. 

In addition, the compliance entities, who are estimated to own 97% of the allowances in circulation, might feel that they have enough allowances already.  In the press release accompanying the monitor report, Maine's Public Utilities Commissioner chalked the low sales of the auction up to reduced emissions across the RGGI region, arguing that the states' investment in energy efficiency have worked.  With lower emissions, fewer allowances are needed.  Since RGGI allows banking, but not borrowing, extra allowances from the 2009-2011 compliance period can be used in the 2012-2014 period, but not the other way around.  As a consequence, the over-allocation of allowances to this early period could make sales of RGGI allowances in the second compliance period sluggish, even without the added political uncertainty.

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Last week, SouthCoastToday and the Herald News both reported that a large expansion by Meditech of its facility in Freetown was on life support, after the Massachusetts Historical Commission required Meditech to strip the top two feet of soil from 21 acres and sieve it for archeological artifacts, at a projected multi-million dollar cost. The Herald News quoted various local leaders calling the MHC’s decision “incomprehensible…arbitrary…bizarre… and unacceptable.” What they did not point out, and what is even more troubling than just the decision here, is that the best description of the MHC action is simply this: business as usual. 

It’s telling that the state MEPA office approved the project, but that MHC is the stumbling block – and that Representative Michael Rodrigues was quoted as saying that

I’ve had several conversations with [Assistant Secretary of State] Michael Maresco. He told me the secretary is not going to meet with me or the applicants, and they have to comply with what his office dictates.”

People both in and out of government have been complaining – quietly – for years about the fiefdom known as MHC. Even the MEPA office cannot get MHC to play nice. Why has the criticism been so quiet? Because the MHC is located within the Secretary of State’s office. Because we live in a one-party state and Secretary of State likely has the job for life, if he wants it. Because state legislators don’t even want their name associated with a bill that would limit MHC’s authority or move it out of the Secretary of State’s office into some part of the administration managed by our actual Governor. Because developers fear retribution from the MHC.

Is the likely failure of the Meditech project going to the catalyst for real change at MHC? One can only hope. It’s time for the legislature, the administration, municipalities, and the private sector collectively to rise up and say "I'M AS MAD AS H___, AND I'M NOT GOING TO TAKE THIS ANYMORE!"

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Yesterday, in commenting on the court battle over EPA’s reconsideration of the ozone NAAQS, I said that I would be surprised if EPA doesn’t issue the new standard within six months. Oops. My bad. Today, President Obama directed EPA to give up on the reconsideration effort. It’s difficult not to be cynical about the White House decision. As much as I admire Cass Sunstein, his letter to EPA providing the basis for the White House decision is not persuasive. Basically, it makes two points. 

First, EPA has to review the NAAQS every five years. Since this cycle began in 2008, EPA would have to review any new standard in 2013. Therefore, why bother? Why not just wait until 2013? The problem with that argument is that the review of the NAAQS is extremely complicated and cumbersome. It’s always going to take much of the five-year cycle. Sunstein’s argument, pushed to its logical conclusion, could result in the NAAQS never being updated, because, by the time EPA is ready to act, it will be so near the time for the next review that the decision would always be deferred to the next round.

The second argument is that the Administration has implemented a number of major initiatives to improve air quality, many of which will reduce ozone in the atmosphere. That’s certainly true, but the real answer to that is, so what? Setting the NAAQS is not a regulatory action; it is merely EPA’s statement as to how high ozone concentrations can get before ozone poses a risk. Regulatory actions may follow from that, but they’re distinguishable. If some of the other actions EPA has taken will reduce ozone levels, that’s not a reason to stop the reconsideration process. In fact, that only suggests that additional regulatory actions necessary to comply with the standard won’t be as expensive as they might otherwise have been, because prior regulatory efforts will have already achieved part of the necessary reductions.

I may have been wrong about EPA’s issuance of a new ozone standard, but I’ll nonetheless go out on a limb and make another prediction – it won’t be long before the environmental petitioners return to the Court of Appeals and request that the Court order EPA not only to continue with the reconsideration process, but to issue a new standard asap. Alternatively, they can go back and simply revive their challenge to the Bush administration standard of 0.075 ppm. If they can get the court to conclude that a standard above 0.070 ppm (or even lower) is arbitrary and capricious, we may still see a lower standard. 

If I were really cynical, I might conclude that that is in fact the Administration’s hoped-for outcome. That way, they get the lower standard, but without the political heat, because they can blame it on the court.

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This week, EPA filed a brief with the D.C. Circuit Court of Appeals, arguing that, notwithstanding its fourth delay in issuing a decision on its reconsideration of the NAAQS for ozone, the court cannot and should not order EPA to issue a decision. Industry shouldn’t get too excited, however. In the same brief, EPA telegraphed pretty clearly, consistent with its 2010 proposed rule, that it remains on track to significantly decrease the ozone standard from the 0.075 ppm standard promulgated by the Bush administration in 2008.

As most readers know, the Bush standard was higher than that suggested by EPA’s own Clean Air Science Advisory Committee, or CASAC. In a parallel case, the D.C. Circuit found EPA’s fine particulate standard arbitrary and capricious, largely because it had ignored CASAC’s recommendations. Given the decision in the fine particulate case, and, presumably, the Obama administration’s own views on the appropriate standard, it is not surprising that EPA embarked on a reconsideration effort, rather than trying to defend the Bush standard.

In January 2010, EPA proposed that the standard should be in a range from 0.060 ppm to 0.070 ppm. However, notwithstanding CASAC’s views, the new standard remains hugely controversial and EPA has had difficulty in finalizing the rule. EPA missed an August 2010 deadline to publish a final rule, and then an October 2010 target, and then a December 31, 2010 target, and then a July 29, 2011 target. When EPA, after missing the most recent target, would not even give a date, but instead only informed the court and the parties that a final rule would be issued "shortly", the environmental petitioners, including the American Lung Association, asked the court to order EPA to issue the final rule.

EPA’s opposition is straightforward. First, it argues that the Court of Appeals has no jurisdiction over citizen claims that EPA is late in issuing such rules. Second, EPA claims that it has been “diligent” in its reconsideration effort and that the final rule will indeed be issued “shortly.” 

It’s difficult to avoid the conclusion that EPA was, to put it mildly, overoptimistic in its reports to the court regarding how long the reconsideration process would take. They should have known better. That being said, I wouldn’t be surprised if the Court continues to give EPA at least some more time to reach a decision. After all, the court cannot issue a standard itself. What would surprise me would be if EPA does not manage to issue the new standard sometime in the next six months or so. They’ve been boxed in by CASAC and any standard above 0.070 ppm would probably be found to be arbitrary and capricious. 

The ever-reliable internet attributes the “wheels of justice” quote to Sun Tzu. No matter how slowly it grinds, EPA is going to have to issue a rule at some point. It would be best to get it out as far in advance of the election as possible. Moving from Sun Tzu to Shakespeare, “if it were done when 'tis done, then 'twere well It were done quickly.” 

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