Court Upholds EPA’s Stricter NO2 Standard

(CN) - A federal appeals court upheld the Environmental Protection Agency's one-hour air quality standard for nitrogen dioxide, rejecting an industry challenge claiming the 2010 standard was stricter than needed to protect the public health.

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In February 2010 the EPA determined that the one-hour concentration of nitrogen dioxide should be no more than 100 parts per billion "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects."

The American Petroleum Institute and the Utility Air Regulatory Group sued the agency, claiming it had based the standard on an unpublished study and ignored a published, peer-reviewed study suggesting that a lower standard would not harm public health.

Nitrogen dioxide is a highly reactive gas created by emissions from cars, trucks, buses, power plants and off-road equipment. The EPA's website cites evidence linking short-term nitrogen dioxide exposure, ranging from 30 minutes to 24 hours, to "adverse respiratory effects, including airway inflammation in health people and increased respiratory symptoms in people with asthma."

The API argued that by relying on an unpublished meta-analysis, the EPA violated its own guidelines, which purportedly require the EPA to rely "only on peer-reviewed and published studies."

But Senior Judge Douglas Ginsburg of the D.C. Circuit suggested that the API "should have had its brief peer reviewed," because it misquoted the EPA's guidelines. The guidelines actually state: "Generally, only information that has undergone scientific peer review and that has been published (or accepted for publication) in the open literature will be considered."

"Generally" does not indicate a mandate, Ginsburg said. "A bad start for the petitioners."

He said the guidelines "expressly commit 'the decision whether to employ peer review,' to the discretion of agency management."

In this case, the EPA had submitted to a committee a meta-analysis of clinical studies showing that concentrations of nitrogen dioxide as low as 80 parts per billion caused adverse reactions in 60 percent of asthmatics.

Ginsburg said the EPA's decision that the Clean Air Scientific Advisory Committee's review was sufficient fell within its discretion, and the industry groups "presented no reason for us to disturb that judgment."

The API also argued that the EPA "arbitrarily and capriciously" ignored a published study finding no direct connection between an increase in ambient air concentrations of nitrogen dioxide and negative health effects.

Ginsburg said the EPA had considered the study but merely disagreed with its methodology. And the EPA had explained that the study was submitted too late in the rulemaking process to be included in the data evaluated by the scientific committee, Ginsburg noted.

The federal appeals court also dismissed the API's claim that the EPA had exaggerated the projected health benefits of its 2010 standard, creating a rule that's more stringent than necessary.

He dismissed the challenge, saying the record "adequately supports the EPA's conclusion" about the negative health effects of nitrogen dioxide concentrations as low as 100 parts per billion.

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