Intervention Denied in Ozone Rulemaking Suit

SAN FRANCISCO (CN) - The manufacturing industry cannot intervene in a challenge to identify more areas that violate air-quality standards for ozone, a federal judge ruled.

The Sierra Club had sued the Environmental Protection Agency after the five-year statutory deadline passed in March 2013 for the agency to promulgate final rulemaking for ozone standards.

It was joined as a plaintiff by the American Lung Association, Environmental Defense Fund and Natural Resources Defense Council.

Under the Clean Air Act, the EPA must establish national ambient air quality standards (NAAQS) for pollutants that pose a danger to public health. It must also review those standards every five years.

Though ozone is a crucial component in the upper atmosphere in blocking ultraviolet radiation, it is a toxic air pollutant at ground level. Called smog, ground-level ozone is created when nitrogen oxides react with volatile organic compounds in the presence of heat and sunlight, the EPA's website explains.

Exposure to smog can cause many serious health problems in humans, especially in young children, the elderly and those who work outside. Among other things, smog exposure can exacerbate asthma, emphysema and other respiratory problems; increase the risk of heart attacks and other cardiovascular conditions; and increase the risk of premature death, according to the Sierra Club's complaint.

The EPA established an eight-hour standard of 0.08 parts per million for ozone in 1997, but it adopted an eight-hour standard of 0.075 ppm in March 2008.

"Shortly after these regulations were promulgated, EPA's Clean Air Scientific Advisory Committee sent EPA a letter stating its strong disagreement with EPA's primary and secondary ozone standards, which it contended failed to provide an adequate margin of safety, and were not supported by the best available science," the Sierra Club claimed.

After several other environmental and public health groups challenged rule, the EPA said it would initiate new rulemaking to revise the standard in light of new scientific studies.

Its failure to do so by the March 2013 deadline prompted the lawsuit alleging violation of the agency's nondiscretionary duty under 42 U.S.C. § 7604(a)(2).

Hoping to intervene in the case, the National Association of Manufacturers (NAM) and several other industrial trade groups claimed that their members are "directly affected by regulations promulgated by EPA" under the Clean Air Act, including ozone air standards, and that more stringent ozone standards "would result in additional requirements on those industries," the court noted.

The association pointed out that its members have participated in past rulemaking for ozone regulations and are also involved in the current review process. It argues that has a right to intervene because the environmentalists' action will force the EPA to make premature decisions on ozone standards without the "benefit of a full analysis of the latest scientific studies," and could also harm its members because they "have substantial economic and procedural interests in both the outcome of the ongoing review and in ensuring that they have adequate time to develop and present to EPA information concerning" ozone standards.

U.S. District Judge Yvonne Gonzalez Rogers shot the proposed intervention down last week, however, after finding that the groups lacked a protectable interest in the matter.

"Plaintiffs' claims are to enforce the Clean Air Act's non-discretionary rulemaking deadlines," Rogers wrote. "The content of EPA's standards is not at issue in this litigation, only its timely compliance with the review deadlines established in the Act. The remedy in t his lawsuit is limited to an order setting a deadline. Resolution of this litigation will not itself compel the adoption of any specific ozone quality standards or additional regulatory requirements. It will simply compel compliance with the review process imposed by statute."

The groups also failed to show that the litigation could hurt its members' economic interests, with Rogers finding that the assertion "does not rise above the speculative in relation to the issues in this litigation."

Precedent demonstrates that economic interest alone is not enough to warrant intervention in an environmental case, according to the ruling. Since the plaintiffs are seeking only to force the EPA to comply with its statutory duties, "the economic interests expressed by the proposed intervenors here are too remote and contingent on other events to be the basis for intervention," Rogers wrote.

Since the Clean Air Act gives the public 30 days to comment on a proposed rule, the proposed intervenors also cannot claim that the litigation will prevent them from compiling scientific evidence for use in the rulemaking process.

The subject action concerns meeting rulemaking deadlines, and not the actual content of the rule, Rogers added, finding that the EPA "will represent adequately any interests that proposed intervenors might have in setting a rulemaking schedule."

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