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D.C. Circuit Delays Arguments on EPA's Smog Rule

By Casey C. Sullivan, Esq. on April 13, 2017 | Last updated on March 21, 2019

The EPA, now under new management, wants to delay litigation over its 2015 smog standard. The agency asked the D.C. Circuit last week to put off upcoming oral arguments in an appeal challenging the standard. On Tuesday, the circuit complied, postponing arguments while the EPA reconsidered its position.

The standard, intended to reduce air pollution and prevent lung and heart disease, was challenged by ten state attorneys general, including Scott Pruitt, who has now become the EPA's Administrator. The delay gives the agency time to review the regulation "to determine whether the Agency should reconsider the rule or some part of it."

A Smog Rule That Satisfied Few

The Clean Air Act tasks the EPA with establishing National Ambient Air Quality Standards (NAAQS) for certain criteria air pollutants that pose risks to public health and the environment. The smog rule at issue here addressed the NAAQS for ozone, an air pollutant created by cars, trucks, and factories which produces smog. Ozone is linked to asthma, respiratory disease, heart attacks, and more.

The new smog regulations set an attainment goal of 70 parts per billion. That was the most stringent ozone requirement since the first NAAQS were established in 1971, but still lower than the 60 to 70 ppb that the EPA's scientific advisory committee had recommended.

The ozone NAAQS was challenged both by states and industry groups that viewed the smog regulation as too stringent, as well as by environmentalists and public health advocates who argued that it did not go far enough.

Putting the Litigation on Hold, for Now

Following the 2016 election and Scott Pruitt's ascension to the head of the EPA, an agency he regularly opposed as Oklahoma's attorney general, the future of the smog regulation, and many others, came into question.

In asking for the delay, the EPA did not take any particular stance on the ozone rule, simply saying that it needed more time to reconsider. The three-judge panel granted the agency just that time.

According to the court's order, the EPA must file status reports on its review of the rule every 90 days, beginning 90 days from Tuesday. Once it has come to a determination, parties will have 30 days to file motions regarding future proceedings.

EPA spokesperson Liz Bowman said the agency was "thankful to the court for granting our motion to postpone" and that the agency continues to review the rule's implications "in light of President Trump's pro-growth agenda".

Earthjustice attorney Seth Johnson, one of the lawyers challenging the rule, was less grateful. The delay, he said, "will likely result in unnecessary asthma attacks and deaths."

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