Appeals Court Denies Rehearing Of South Coast Ozone Case

Jun 8: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 04-1200, 04-1201. The case, South Coast Air Quality Mgmt. Dist. v. EPA, involves five petitions for rehearing with regard to the vacatur and remand of a final rule implementing the eight-hour national ambient air quality standard (NAAQS) for ozone under the Clean Air Act (CAA) [See Final Phase 1 Rule To Implement the 8-Hour Ozone NAAQS, 69 Fed. Reg. 23,951 (Apr. 30, 2004) (codified at 40 C.F.R. parts 40, 51, 81) (2004 Rule)]. The petitions were filed by a group of Environmental Petitioners, the Chamber of Greater Baton Rouge et al. (Baton Rouge), National Petrochemical & Refiners Association (NPRA), American Chemistry Council et al. (ACC), and EPA.

According to the Appeals Court, the petitions overlap in part, challenging principally the court’s interpretation of the statutory gap, described in Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001), that arises from the decision of the Environmental Protection Agency (EPA) to change from a one-hour to an eight-hour measurement system for ozone, and the court’s construction of the CAA’s anti-backsliding provision. See S. Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) [See WIMS 1/02/07].

The Appeals Court said, "None of these challenges has merit and we deny the petitions. However, we grant the joint request of EPA and the Environmental Petitioners to clarify the description of the required conformity determinations and to modify the scope of the vacatur of the 2004 Rule."

Earthjustice represented a group of public health and environmental organizations including the American Lung Association, Environmental Defense, the Natural Resources Defense Council and the Sierra Club; that challenged the EPA rule and then subsequently defended the court's December decision that overturned the rule. In explaining the decision, Earthjustice said, "Today's decision reaffirms that EPA violated the Clean Air Act by relaxing limits on ozone, or smog pollution, from large power plants, factories and other industrial sources. The U.S. Court of Appeals for the District of Columbia denied the EPA and industry petitions for rehearing, and actually clarified in even stronger terms that weakening air protections is illegal under federal law. The court characterized the industry's desired readings of the law as a 'glaring loophole' that nothing suggests Congress intended." The Appeals Court said, "EPA is urged to act promptly in promulgating a revised rule that effectuates the statutory mandate by implementing the eight-hour standard, which was deemed necessary to protect the public health a decade ago."

Access the complete 8-page opinion (click here). Access a release from Earthjustice (click here). Access other related South Coast articles posted on the WIMS-eNewsUSA Blog (click here). [*Air]