Challenge to Lax Air Rules Crumbles at DC Circuit

WASHINGTON (CN) – The D.C. Circuit signed off Friday on new EPA regulations that give states a break on monitoring dangerous air quality.

Adopted in 2016 as part of the Clean Air Act, the EPA changed its process of reviewing and approving state plans, and it made it that states would be permitted to sample less frequently on a case-by-case basis.

The Sierra Club filed suit over the move that May, saying the weakened rules would leave vulnerable people in the dark about the quality of the air they breathe.

Though the D.C. Circuit dispatched the challenge Friday on largely procedural grounds, the three-judge panel also chided the Sierra Club for not substantiating its claim that EPA ignored objections before enacting the changes to quality-assurance requirements.

The Sierra Club had balked at the EPA’s claim that nobody came out against the changes, but U.S. Circuit Judge Stephen Williams wrote for the three-person panel Friday that this says nothing about whether  the EPA grappled with concerns.

Even if the EPA was “plainly and concededly mistaken” about the comments it received, Williams said the agency did mention the concerns without tying them to specific comments.

“EPA plainly addressed the factors that the comment had said must be considered,” Williams wrote.

The Sierra Club claimed the EPA should review the state monitoring networks by the same standard it does state plans to reduce air pollution, but Williams said the EPA’s decision to use different standards for the two was made in a 2006 regulation, making the window for the group to raise the claims long closed.

Williams also found that the Sierra Club could not challenge the reductions in sampling frequency because the group did not show its members would suffer harm as a result of the change. He said no fewer than five distinct events would have to occur in sequence for a Sierra Club member to suffer harm as a result of the change, a series of events too speculative to carry the suit.

“At bottom, Sierra Club’s claim to standing ‘stacks speculation upon hypothetical upon speculation,’” Williams wrote, quoting a 2018 D.C. Circuit decision.

Neither the EPA nor the Sierra Club immediately returned a request for comment on the decision.

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