16 April 2023

Foley Hoag LLP

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Last week, Inside EPA (subscription required) reported
that the Clean Air Science Advisory Committee has pretty much
agreed that the National Ambient Air Quality Standards for ozone
must be made more stringent. Apparently, the panel is looking at
recommending that the primary standard be reduced from 70 ppb to a
range of 55-60 ppb. CASAC is also recommending a reduction in the
secondary standard.

I’ve blogged numerous times about the role
that CASAC recommendations play in judicial review of EPA’s
decisions concerning setting the NAAQS. The short version is that
setting the NAAQS – any NAAQS – at a level consistent
with CASAC’s recommendations is both a necessary and sufficient
condition to surviving judicial review. In other words, if the
NAAQS set by EPA is consistent with the CASAC recommendation,
EPA’s rule will be affirmed. If EPA’s NAAQS is not
consistent with CASAC’s recommendation, EPA will lose.

This is not a hard and fast rule. Neither the Supreme Court nor
the District of Columbia Court of Appeals has ever said explicitly
that consistency with CASAC is either necessary or sufficient.
Still, it’s hard to read the decisions in cases challenging EPA
NAAQS decisions without coming to the conclusion that the CASAC
recommendation at the very least ways heavily on the scales of
justice.

CASAC’s likely recommendation is going to pose significant
problems for EPA. First, if CASAC recommends a range of 55 ppb to
60 ppb, that would be a significant decrease, making a decision to
stick at 70 ppb really awkward.

Secondly, in case you hadn’t figured this out, the stakes
are high. The cost of attaining a standard at or below 60 ppb would
be substantial. There isn’t much doubt that the GOP is already
preparing to attack Democratic candidates for continuing to support
job-killing regulations. Of course, they won’t mention in their
ads that none other that Justice Scalia, in his opinion in Whitman v. American Trucking
Associations, wrote that:

The text of § 109(b), interpreted in its statutory and
historical context and with appreciation for its importance to the
CAA as a whole, unambiguously bars cost considerations from the
NAAQS-setting process, and thus ends the matter for us as well as
the EPA.

A cynic might suggest that this is why EPA has stated that it
does not expect to finalize its decision whether to retain the
current ozone NAAQS or instead to revise it until December
2024.

Of course, cynicism is unhealthy and unhelpful and I don’t
believe in it.

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