The coal industry, states and big business groups called the Obama administration’s rules for smog-forming ozone completely unattainable, laying out their legal arguments Friday in a heated case to upend what are called the most expensive regulations in history.
The decisions made by the Environmental Protection Agency in creating the rules are “arbitrary, capricious and contrary” to the Clean Air Act, the groups argue in a legal brief laying out their arguments against new ozone rules in the D.C. Circuit Court of Appeals.
At the heart of the argument is the EPA’s decision not to factor ozone emissions that are naturally occurring, which businesses have no power to control, into the rules. If those background emissions were taken into account, the EPA would have seen the impossible task it was laying out.
They argue that the EPA’s reasons for not including the background emissions are not supported by Supreme Court precedent, and the appeals court judges should take action to freeze the rules and remand them back to EPA.
“Here, EPA failed to account for the influence of background ozone on the achievability of the revised [ozone standards] and, in fact, set standards that cannot be achieved in numerous areas of the country because of background ozone that cannot be controlled,” the court brief reads. “Although EPA cited certain other regulatory mechanisms that it claims can help address nonattainment of the revised [standards] due to background ozone levels, those mechanisms fail to cure that defect.”
The ozone standards set concentrations that many of the groups in the lawsuit say would place many national parks and areas of pristine wilderness out of compliance.
The new standards ratchet down the amount of allowable ozone from 75 to 70 parts per billion. The agency had initially pondered going further to 65 parts per billion. But even at 70 ppb it will place many areas of the country out of attainment, meaning a number of restrictions on business, construction and job creation, says critics of the rule.
They argue in the brief that EPA’s failure to address these adverse consequences to the economy is “unlawful.”
“Stricter standards can stymie economic growth by forcing the early retirement of facilities unable to implement controls, contributing to job losses; discouraging existing businesses from expanding in nonattainment regions; and driving away potential new investments.”
“It is undisputed that the reduced [standard] will have such impacts and that EPA did not consider them,” the brief says.
Petitioners in the lawsuit include Murray Energy, the U.S. Chamber of Commerce, refiners and a number of other industry groups. The states of Arizona, Arkansas, New Mexico, North Dakota and Oklahoma are also part of the suit.
The case has been consolidated with lawsuits by environmental groups that say EPA didn’t go far enough in lowering the standard. Oral arguments have not been set in the case.
