• It’s High Noon: Showdown Between States, EPA on Ozone Regulations
  • January 5, 2018
  • On Tuesday, December 5, 2017, 14 states — including California, New York, and Illinois — plus the District of Columbia filed suit in federal court in the Northern District of California against Scott Pruitt and the EPA. The states are trying to force EPA to announce a decision on whether all areas of the country are in or out of compliance with Clean Air Act ozone standards. According to the complaint, such designations trigger the steps necessary to protect the public from the various health effects — such as heart disease, bronchitis, and asthma—caused or exacerbated by ozone pollution.

    The Clean Air Act requires EPA to promulgate health-based air quality standards for certain pollutants, including ozone. EPA’s promulgation of an air quality standard sets in motion a multiyear process under the statute that is designed to result in cleaner air for the public. As part of that process, EPA must issue designations of areas of the country as either “attainment”, “nonattainment”, or “unclassifiable.” This designation must be made within two years of promulgating a new air quality standard. EPA made air quality designations for the states bringing the lawsuit over two years ago, in October 2015.

    The states bringing the lawsuit allege that EPA failed to follow up by making the required designation of areas within their states. This means that other Clean Air Act requirements and enforcement mechanisms cannot be used to improve air quality. The states allege that pollution reductions from attaining the 2015 air quality standard would save hundreds of lives, prevent respiratory problems, and enable children to attend school days they would otherwise miss. They seek an order forcing EPA to move forward with the designations.

    The lawsuit is the latest move in a months-long battle between the plaintiff states and EPA over the ozone standard. In June, EPA decided to put off making designations of which areas of the country met the new standard, but EPA reversed course after the states filed a lawsuit in August. Back then, Mr. Pruitt said “[u]nder previous administrations, EPA would often fail to meet designation deadlines, and then wait to be sued by activist groups and others, agreeing in a settlement to set schedules for designation. We do not believe in regulation through litigation, and we take deadlines seriously.” Now, EPA appears to be adopting the previous administrations’ approach. It remains to be seen how quickly the designations will be made and how soon industry can expect to be affected by the new standard