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Environmental Alert: The President abandons a tighter Ozone Standard: What it means

What it means

On Friday afternoon, September 2, 2011 of Labor Day weekend, President Obama made a surprising announcement. His administration decided to abandon the proposed tightened Ozone Standard by which we measure the country’s air quality, thereby suggesting that the haze in those lazy, hazy, crazy days of summer would be with us at current levels for two more years. Environmental groups saw the President’s decision as a betrayal and capitulation to congressional and business pressures. Business and manufacturing groups saw the decision as the only logical choice in a job-strapped economy.


What is the Ozone Standard?

The Ozone Standard is a tool by which the country measures its overall ambient air quality. When Congress passed the Clean Air Act in 1970, it designated six standards by which we would measure the nation’s air quality. Those standards are known as the National Ambient Air Quality Standards (“NAAQS”). The NAAQS designate six pollutants by which we measure the nation’s air quality. Ozone is one of them. The other five are carbon monoxide, lead, nitrogen dioxide, particulate matter, and sulfur dioxide. For each of these pollutants, the Clean Air Act requires the administrative branch to set levels that will protect public health and welfare. Every five years, the federal Environmental Protection Agency (“EPA”)is required to review the levels set by the NAAQS to confirm that they continue to protect public health and welfare.

Under the Clean Air Act, the individual states are then required to promulgate enforceable programs, known as State Implementation Plans (“SIPs”), that restrict emissions from air pollution sources within their jurisdictions to attain or maintain achievement with NAAQS levels. The states are required to measure and assess air quality within their boundaries for compliance with the NAAQS, and to determine how to attain or maintain compliance with NAAQS levels. Those areas within a state where air quality fails to meet one or more NAAQS levels are declared by the federal EPA to be “nonattainment areas,” and that state is then required to develop and implement a SIP that will demonstrably enable that area to reach attainment status. The states that fail to develop and implement an acceptable SIP may be subject to federal sanctions that can include loss of federal funding, and restrictions on the development of large new emission producing facilities in a nonattainment area.

Ozone is a ground level pollutant often referred to as smog. It is formed in the lower atmosphere when emissions of nitrogen oxides and Volatile Organic Compounds (“VOCs”) go through a chemical reaction in warm sunlight. Nitrogen oxides and VOCs are emitted into the atmosphere by the burning of hydrocarbons, primarily through the combustion of fossil fuels in automobiles, industrial plants, and coal burning electric power plants. SIPs for the ozone NAAQS typically contain provisions for auto emission testing, emission restrictions for nitrogen oxide and VOC emitting plants, and required pollution control equipment for industrial facilities.

History of the vacated Ozone Standard

The Clean Air Act requires a review of the NAAQS every five years to ensure that they remain protective of public health and welfare. This review is conducted by an advisory committee appointed by the administrator of the EPA. When the EPA had not completed a required five year review for ozone by 2003, the American Lung Association and other environmental and health groups filed a lawsuit to compel the statutory review. To resolve the lawsuit, the EPA agreed to complete its review of the ozone NAAQS and finalize findings of its review by December, 2006. The EPA sought and received extensions of this deadline and finally adopted a new ozone NAAQS level of 75 Parts Per Billion (PPB) in March, 2008.

Environmental advocates and business interests both challenged the new Ozone Standard in the DC Circuit Court of Appeals. The environmental groups argued that the EPA advisory committee had recommended a much lower standard than the 75 PPB designated. The business groups argued that the costs to meet the 75 PPB standard outweighed any benefits gained. The incoming Obama administration sought and received a stay in the appellate proceedings. The Obama administration then advised the court that it would propose a new federal rule for the ozone NAAQS level in December, 2009 and finalize that rule in August, 2010. In January, 2010, the federal EPA proposed a new ozone NAAQS level of 60 to 70 PPB. Environmental advocates filed comments that the level should be put at 60 PPB to provide the highest protection of human health. Business advocates commented that a 60 PPB standard would force prohibitive compliance costs on industry and result in 85 percent of U.S. counties being redesignated as nonattainment areas for the Ozone Standard. In light of these comments, the EPA announced that it would not issue its final determination by the end of August as earlier committed. Instead, the agency asked for additional time to review the health based and cost analysis arguments, and pledged to issue a final standard by the end of July, 2011.

When the EPA failed to meet its own self imposed July deadline, the parties to the 2009 appeal to the DC Circuit Court of Appeals went back to court. The American Lung Association and its co-appellants asked the court to compel the EPA to issue an Ozone Standard immediately. The industry group of appellants, on the other hand, argued that an Ozone Standard had been adopted in 2008, and that the court should simply allow the appellate action initiated in 2009 to proceed forward.

The President’s decision and reasoning

In light of these developments, President Obama announced on September 2, 2011 that he was withdrawing his administration’s proposed Ozone Standard. His reasoning was that the standard finalized in 2008 of 75 PPB (which is the subject of the stayed 2009 appeal) will need to be reviewed in 2013, and that work has already commenced for that review. He stated that he did not want states to begin preparing SIPs at this time for a standard that would only be reconsidered again in 2013. So barring intervention by the courts, the outlook for a tightened Ozone Standard before 2013 looks hazy.

For more information, please contact:

Theodore J. Esborn

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© 2011 McDonald Hopkins LLC All Rights Reserved. This Alert is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.