EPA’s Ozone NAAQS Largely Survives: CASAC Still Rules

The D.C. Circuit today largely upheld EPA’s 2015 revisions to the National Ambient Air Quality Standard for ozone.  I’m not much of a prognosticator, but I pretty much called this one years ago.  The Court was never going to require EPA to consider costs in setting the NAAQS – not a surprise, given that the Supreme Court concluded in Whitman v. American Trucking Association that the CAA:

unambiguously bars cost considerations from the NAAQS-setting process.

Nor was it going to rule that EPA should have taken background ozone concentrations into account in setting the NAAQS.  As the Court recognized, the statute allows EPA to address background issues in implementing the NAAQS, but implementation issues are irrelevant to setting the NAAQS at the level, “allowing an adequate margin of safety, [that] are requisite to protect the public health.”

On the merits of EPA’s decision to lower the primary ozone NAAQS from 0.075 ppm to 0.070 PPM, the petitioners came squarely up against the recommendation of the Clean Air Science Advisory Committee that EPA set the NAAQS at somewhere in the range of 0.060-0.070 ppm.  The Court was never going to require EPA to pick a level outside CASAC’s recommended range.  Indeed, had EPA done so, the Court very likely would have vacated such a decision.

The more interesting aspect of the case was the Court’s decision to affirm the standard against environmentalists’ challenge arguing 0.070 ppm was not sufficiently stringent.  CASAC had recommended that EPA adopt a standard of 0.060 ppm.  However, as I predicted, EPA adequately protected its left flank.  As the Court noted, CASAC’s scientific recommendation was that the standard be in the 0.060-0.070 ppm range.  EPA selected a standard from within that range.  CASAC’s recommendation that EPA select 0.060 ppm was a policy judgment, not a scientific judgment – and EPA gets to make the policy judgments.

I have in the past noted that CASAC’s scientific recommendations are borderline sacrosanct and this case does nothing to change that view.  Thus, If this case highlights anything, it is that this Administration’s efforts to reshape EPA’s advisory committees are going to be really important.  What happens if a radically reshaped CASAC concludes that 0.075 ppm is “requisite to protect the public health”?  We may get an answer to that question sooner than we ever thought.

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