Texas Joins Fight Against EPA’s New Ozone Rule

(CN) - Texas sued the Environmental Protection Agency, joining eight other states, industry trade groups and environmentalists who went to court to denounce the agency's new ozone-emissions rule.

The lawsuit filed by Texas Attorney General Ken Paxton and the Texas Commission on Environmental Quality marks the 23rd time Texas has sued the EPA since President Obama took office in January 2009. Texas filed the petition last week and announced it on Monday.

The EPA changed its National Ambient Air Quality Standards on Oct. 1, reducing the acceptable amount of ground-level ozone in the atmosphere from 75 parts per billion to 70 parts per billion. The change took effect December 28.

Texas joined other Republican-led states - Arizona, Arkansas, Kentucky, New Mexico, Oklahoma, North Dakota, Utah and Wisconsin - who have already sued the EPA over the ozone rule.

Under the Clean Air Act, the EPA sets national standards for six pollutants: Ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, fine particulate matter and lead. Experts say ozone is the most prevalent of the six and is the main component of smog that envelops large cities on hot summer days.

The ozone layer that blankets the earth from six to 30 miles above its surface protects people from harmful ultraviolet rays, but ground-level ozone is hazardous, according to the EPA.

Ozone forms when nitrogen dioxide and volatile organic compounds like benzene, which are emitted by cars and factories, cook in sunlight on hot summer days, Neil Carman, clean air director for the Sierra Club's Lone Star Chapter, said in an interview.

Carman said the EPA's new rule brings the nation's ozone standards in line with opinions scientists and doctors have held for years.

The EPA adopted the 75 ppb as the ozone standard in 2008 under President George W. Bush, despite the unanimous recommendation of the EPA's own panel of 25 independent scientists and physicians - called the Clean Air Science Advisory Committee - that it be set no higher than 70 ppb, Carman said.

The Sierra Club and other environmental groups think the EPA erred by not making the ozone standard more stringent.

Earthjustice, a nonprofit law firm, sued the EPA on December 23 for the Sierra Club, Physicians for Social Responsibility, the National Parks Conservation Association and two other groups.

"The EPA has a duty to set standards that assure our air is safe to breathe. We say they violated that duty here," Earthjustice attorney David Barron said in a statement.

Dr. Catherine Thompson, director of Physicians for Social Responsibility, said that doctors see more patients suffering from asthma attacks and heart attacks on high-ozone days, and the substance can even harm babies in the womb.

"Regrettably, the EPA's failure to adopt stronger ozone standards leaves people without the full protection that is needed. The health benefits of a 60 ppb standard would be far greater than 70 ppb, because - as the latest science shows us - ozone is clearly harmful to health at levels down to 60 ppb," Thompson said in a statement announcing the lawsuit.

Though unhappy with the new standards, Earthjustice conceded they are an improvement over the Bush-era rules.

Industry groups, who argue the standard should have stayed at 75 ppb, also took heart that the EPA didn't go any lower than 70 ppb.

A coalition of industry trade groups, including the National Association of Manufacturers, the American Petroleum Institute and the U.S. Chamber of Commerce, also sued the EPA over the new ozone standard on December 23.

The coalition claims the new rule is unnecessary because air quality has been improving in the United States over the past 15 years due to previous crackdowns on air pollution sources by the EPA.

Ross Eisenberg, vice president of energy and resources policy for the National Association of Manufacturers, said the new standard is most burdensome for manufacturers in "nonattainment" areas like Houston and Los Angeles, where ozone readings regularly top the EPA's air-quality standards.

"Let's say you wanted to add a boiler to your manufacturing facility. If you want to get a permit to do that and you're in a nonattainment area then you have to figure out a way to get somebody else to close down an equal or greater number of emissions, so when you bring your source online there's actually less overall emissions. So that's a requirement in nonattainment areas that is almost impossible to deal with," Eisenberg said in an interview.

He said manufacturers, power plants and refiners have "reached our ceiling in a lot of places" where there's nothing more they can do to reduce ozone emissions and the government shouldn't move the target so quickly after the last ozone-standard change in 2008.

"That's been our argument all along is that let's let the regulations we put in place a few years ago, let them actually work. There's no need to introduce even more of a rushed timeline and stricter standards while we're still trying to meet the old ones," he said.

Carman, with the Sierra Club, agreed that U.S. air quality has improved dramatically.

"The air is getting cleaner but we still have work to do. It used to be in Houston the smog was so bad in the '80s and '90s on bad days you would feel it stinging your skin, the same way in Los Angeles, but not anymore," Carman said.

Despite the improvements - like scrubbers that power plants and refineries have installed to filter pollutants and more fuel-efficient cars - Texas' three biggest metropolitan areas of Houston, Dallas-Fort Worth and San Antonio are out of compliance with the EPA's new ozone standard, Carman said.

But other areas of the Lone Star State - Austin, Corpus Christi, Beaumont-Port Arthur and East Texas - can meet the new standard, Carman said.

He said the bellyaching from industry over stricter standards is a refrain he's grown accustomed to during his decades advocating for clean air.

He said he recalls attending meetings 20 years ago with Exxon Mobil employees, lobbyists and lawyers who argued that Houston plants would have to shut down for the city to meet the EPA's ozone standards. "They haven't shut down, they've cleaned up and Houston is now on the verge of meeting the standard, which was unthinkable 20 years ago."

All of the lawsuits challenging the rule were filed with the U.S. Court of Appeals for the District of Columbia, which hears appeals of rules instituted by federal agencies.

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