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.”