Greens Stumble in Fighting EPA’s Smog Rules

SAN FRANCISCO (CN) — The EPA defended its implementation of the Clean Air Act, telling a Ninth Circuit panel in back-to-back arguments that it is following the law in trying to control smog in California.

But environmental groups argued the agency had bypassed steps required by the Clean Air Act so it could avoid forcing state air-quality watchdogs to make specific plans to reduce ozone, or to meet certain reduction deadlines.

But hearing the cases Tuesday, the three judges of the Ninth Circuit panel seemed as focused on whether the environmental groups had a right to be heard in the appeals court as they were on the groups' arguments about pollution measurement standards and deadlines.

Earthjustice attorney Paul Cort told the panel that his clients, the Sierra Club and Medical Advocates for Healthy Air, have standing to challenge the EPA because of the physical and aesthetic harm ozone causes to the people in the San Joaquin Valley and the South Coast Basin.

Cort said that once those areas failed in November 2010 to reduce the ozone to levels called for in a 1990 revision of the Clean Air Act, the EPA should have imposed tighter ozone standards in those areas.

By choosing "not to trigger those more prescriptive requirements, that's the injury to petitioners' members," Cort said.

The Ninth Circuit could send the case back to the EPA with an order to impose more restrictive controls, he said, which would lead to quicker emissions reductions.

He said a remand would mean the EPA cannot adopt what he called a flexible, open-ended plan, and that he wants the EPA to get back on a path "that complies with the statutory scheme and doesn't allow EPA the discretion they're trying to claim."

During Cort's rebuttal period, Circuit Judge Jerome Farris provided the attorney another chance to address doubts about the timeliness and standing of the environmental groups' challenge to the EPA.

"You've used a lot of time and you may think you've refuted both of them, but at least a third of the court thinks you've refuted neither of them," Farris said.

The EPA told the panel that new, stricter standards for measuring dangerous levels of ozone have replaced the standards that the Sierra Club wants enforced.

"Petitioners' argument glosses over the most critical fact in this case," Justice Department attorney Amanda Berman, arguing for the EPA, said.

She said the old standard was revoked in 2005 and replaced with a more stringent one, and that the D.C. Circuit Court of Appeals upheld the new standard in 2006.

The older standard was called the 1-hour National Ambient Air Quality Standard, which limited the maximum hourly ozone concentrations to 0.12 parts per million. This standard was replaced with an eight-hour standard, which limits the maximum 8-hour average ozone concentrations to 0.08 parts per million.

Berman said the EPA does not want air-quality enforcers like the South Coast Air Quality Management District and the San Joaquin Valley Unified Air Pollution Control District to split their attentions between the two standards, calling it "counterproductive."

In the second, related air quality case of the day, Earthjustice lawyer Adriano Martinez said that after South Coast failed to meet the one-hour ozone standard by 2011, the EPA was required to set a deadline for compliance. He said that the Clean Air Act only gives the agency a choice to set it at the end of 2016 or, with an extension, to 2021.

Martinez, who represents Physicians for Social Responsibility-Los Angeles, the Sierra Club, Natural Resources Defense Council and Communities for a Better Environment, said that the EPA lacked the authority to extend the date to the end of 2022.

The panel did not indicate when or how it would rule.

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