D.C. Circuit leaves 2008 ozone air quality standards intact
A coalition of trade associations, the "Ozone NAAQS Litigation Group," petitioned the court to review new ozone regulations promulgated by the EPA. NCLC believes that the preexisting regulations were sufficient to safeguard against risks to public health and that the EPA has not identified any reliable scientific evidence since the promulgation of the prior rules suggesting otherwise. Moreover, the EPA acted arbitrarily and capriciously when it did not take into account the effects of cross-border pollution.
Separately, the American Lung Association and the Natural Resources Defense Council also sued the EPA challenging the 2008 rule. The Ozone NAAQS Litigation Group intervened in that lawsuit.
In May 2009, the DC Circuit agreed to consolidate the cases and hold them in abeyance while the Administration considered whether to reconsider the rule. In September 2009, the Administration announced it would reconsider the rule, and issued its proposed revisions in January 2010.
On August 10, 2011, the Litigation Group opposed the environmental petitioners' motion asking the D.C. Circuit to establish a deadline by which EPA must complete its reconsideration of the 2008 ozone NAAQS. The Group also asked the court to resume briefing in the case.
On September 2, 2011, the Administration, via OIRA, ordered the EPA to rescind its reconsideration of the 2008 Rule. As a result, the 2008 ozone NAAQS of 0.075 ppm will remain in place and any review of that standard will take place in the normal course of the statutory five-year review period.
With respect to the primary NAAQS, the court rejected arguments that the 2008 ozone standards were either too strict or too lax.
Petition for review filed 5/27/08. Motion to consolidate cases and hold in abeyance granted 3/19/09. EPA notice of intent to reconsider rule 9/09. Denial of motion to begin briefing issues not subject to reconsideration 4/4/11. Administration rescinds reconsideration of rule 9/2/11. Oral argument held 11/16/12. Opinion issued 7/23/2013. Opinion amended and reissued 12/11/13.