Deja Vu One More Time? What Will Happen If EPA Ignores CASAC Regarding the Ozone NAAQS?

Last week, Inside EPA (subscription required) reported that the Clean Air Science Advisory Committee has pretty much agreed that the National Ambient Air Quality Standards for ozone must be made more stringent.  Apparently, the panel is looking at recommending that the primary standard be reduced from 70 ppb to a range of 55-60 ppb.  CASAC is also recommending a reduction in the secondary standard. 

I’ve blogged numerous times about the role that CASAC recommendations play in judicial review of EPA’s decisions concerning setting the NAAQS.  The short version is that setting the NAAQS – any NAAQS – at a level consistent with CASAC’s recommendations is both a necessary and sufficient condition to surviving judicial review.  In other words, if the NAAQS set by EPA is consistent with the CASAC recommendation, EPA’s rule will be affirmed.  If EPA’s NAAQS is not consistent with CASAC’s recommendation, EPA will lose.

This is not a hard and fast rule.  Neither the Supreme Court nor the District of Columbia Court of Appeals has ever said explicitly that consistency with CASAC is either necessary or sufficient.  Still, it’s hard to read the decisions in cases challenging EPA NAAQS decisions without coming to the conclusion that the CASAC recommendation at the very least ways heavily on the scales of justice.

CASAC’s likely recommendation is going to pose significant problems for EPA.  First, if CASAC recommends a range of 55 ppb to 60 ppb, that would be a significant decrease, making a decision to stick at 70 ppb really awkward.

Secondly, in case you hadn’t figured this out, the stakes are high.  The cost of attaining a standard at or below 60 ppb would be substantial.  There isn’t much doubt that the GOP is already preparing to attack Democratic candidates for continuing to support job-killing regulations.  Of course, they won’t mention in their ads that none other that Justice Scalia, in his opinion in Whitman v. American Trucking Associations, wrote that:

The text of § 109(b), interpreted in its statutory and historical context and with appreciation for its importance to the CAA as a whole, unambiguously bars cost considerations from the NAAQS-setting process, and thus ends the matter for us as well as the EPA.

A cynic might suggest that this is why EPA has stated that it does not expect to finalize its decision whether to retain the current ozone NAAQS or instead to revise it until December 2024.

Of course, cynicism is unhealthy and unhelpful and I don’t believe in it.

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