Court Strikes Portions |of Bush-Era Smog Rule

(CN) - In a ruling hailed as a victory by environmental groups, the D.C. Circuit ordered the government to reconsider three sections of a Bush-era smog rule that had eased pollution-control policies under the Clean Air Act.

The Natural Resources Defense Council, represented by Earthjustice, filed a lawsuit in 2006 challenging the Environmental Protection Agency's "phase 2" rule, which eased federal smog-control standards.

The federal appeals court in Washington, D.C., remanded a cap-and-trade plan for nitrogen oxide, a precursor to smog, without vacating the plan. The court determined that the cap-and-trade plan, effective within 22 states of the northeast, did not adequately regulate large nitrogen-oxide emitters in regions already struggling with high levels of air pollution.

The ruling centered on a 1997 EPA decision to relax ozone limits to 80 parts-per-billion, measured over eight hours. The previous standard required polluters to measure ozone on an hourly basis.

Fifty-five areas failed to meet the eight-hour standard, including Chicago, New York and Philadelphia.

The three-judge panel found that allowing companies to buy pollution allowances was more expensive than installing specific technology limiting pollution, but said that if the agency could prove otherwise, that portion of the rule might stand.

The court also found that the EPA had arbitrarily eliminated a safeguard provision requiring areas to show their compliance with national standards before claiming credit for historical pollution reductions.

The panel vacated and remanded an 18-month limit on reviewing new pollution sources, saying the limit violated an "anti-backsliding" provision of the Clean Air Act, meant to prevent the EPA from relaxing controls that it previously tightened and vice versa.

Although the panel struck these three elements of the rule, it allowed several others to stand, praising a case-by-case approach on control certifications and EPA policies that afforded flexibility on revisions to reductions of volatile organic compounds.

Smog, or ozone, is formed when industrial and vehicle emissions react with sunlight and other pollutants. When inhaled, ozone reacts chemically with lung tissue, causing respiratory problems and increasing the risk of early death. The EPA in March 2008 reduced the nationwide smog tolerance to 75 parts-per-billion.

In July 2008, the D.C. Circuit rejected another cap-and-trade plan, the Clean Air Interstate Rule, as containing "more than several fatal flaws." Five months later, it allowed that rule to stand pending a rewrite.

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