The Wheels of EPA’s Reconsideration of the Ozone Standard Grind Slowly — Time Will Tell How Finely

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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