Environmental and Natural Resources

by Chris Colyer

The status of a controversial rule establishing more stringent ambient air quality standards for ozone—promulgated by former President Barack Obama’s Environmental Protection Agency (EPA)—remains unclear following a series of developments under the current Trump Administration and the 115^th United States Congress.

Section 108 of the Clean Air Act requires EPA to identify, list, and issue criteria for certain air pollutants that in EPA’s judgment “cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.” These air pollutants—more commonly known as “criteria pollutants”—are subject to National Ambient Air Quality Standards (NAAQS) designed to protect public health.  To date, EPA has listed six criteria pollutants: carbon monoxide, lead, nitrogen dioxide, particle pollutants, sulfur dioxide, and ozone.

The states and EPA must develop designations—attainment, nonattainment, or unclassifiable—describing whether areas of each state comply with the revised NAAQS standard.  Each state is responsible for ensuring that its ambient air attains and maintains these EPA-mandated NAAQS.

In October 2015, EPA issued a final rule reducing the NAAQS standard for ozone from 75 parts per billion (ppb) to 70 ppb.  Under the Clean Air Act, EPA has until October 1, 2017 to then promulgate initial area designations describing the attainment or nonattainment status of state areas with respect to this revised NAAQS ozone standard.

In 2015, EPA argued the tougher standard would provide increased public health protection for children, older adults, and people with lung diseases, resulting in estimated net economic health benefits of $2.9 to 5.9 billion nationwide by 2025.  However, as previously reported in this blog, many states argued that the new ozone standard would have substantial negative effects.  For example, the State of Arizona estimated that nine of ten counties measuring ozone may be unable to meet the new standard and further, that Arizona lacked any viable option for implementing additional ozone controls.  In fact, the State of Arizona argued that to ensure air quality improvement, it would need to require new/modified sources of air pollution to somehow remove or offset more ozone from the air than the new/modified source could itself emit.  Unsurprisingly then, in October 2015, Arizona and four other states—Oklahoma, Arkansas, New Mexico, and North Dakota—filed suit against EPA challenging the revised ozone standard.  Notably, then-acting Oklahoma Attorney General Scott Pruitt—who later in 2017 would be named Administrator of the EPA by President Donald Trump—filed the challenge on behalf of the State of Oklahoma.

EPA’s stance on the revised ozone NAAQS standard took an about face, however, when President Trump took office in January, 2017. Shortly after taking office, EPA—under new Administrator Scott Pruitt—requested a continuance of the pending lawsuit to review the revised ozone standard “[i]n light of the recent change in administration.”  The Court of Appeals granted EPA’s request.  Shortly after, on June 28, 2017, EPA announced it would extend the October 1, 2017 deadline for promulgating designations as to which areas attained or failed to attain the revised ozone standard by one year. Among other reasons for extending its deadline, EPA noted that “new agency officials are currently reviewing the 2015 NAAQS rule” and that “[t]he Administrator has determined that in light of the uncertainty of the outcome of that review, there is insufficient information to promulgate designations” by the existing deadline.  Consequently, fifteen different states sued EPA to challenge its decision to delay issuance of the ozone designations and seeking EPA to implement the October, 2015 revised rule. The following day, EPA withdrew its June 28, 2017 extension, reinstating EPA’s October 1, 2017 deadline to issue initial attainment designations.

As it now stands, Scott Pruitt’s EPA is in a unique situation. Unless a legislative fix occurs, EPA may be required to implement attainment and nonattainment designations regarding compliance with the new 70 ppb ozone NAAQS standard.  Thus, if the D.C. Circuit Court of Appeals terminates the stay of Arizona and Oklahoma’s lawsuit, EPA Administrator Pruitt may be compelled to defend the revised standard in the same lawsuit where he sought its revocation.  A legislative fix remains possible, although both U.S. House and Senate bills also appear stalled. U.S. Senate Bill 452 (115^th Congress)—which would delay implementation of the revised ozone NAAQS standard until 2025—has been stalled in committee since May 23, 2017.  A similar bill, U.S. House Bill 806 (115^th Congress), has passed the House of Representatives, but also has been stuck in the Senate’s Committee on Environment and Public Works since July 19, 2017.