DC Circuit Court – EPA can’t erase interstate smog rules

The EPA finalized the “Close-Out Rule” in December 2018, ending a requirement that upwind states reduce smog-forming pollution from coal power plants. The agency concluded it would not be feasible to put into place cost-effective measures, and it projected that all states would soon be in compliance with the federal ozone standard without further federal action.

Much of the smog that infiltrates our cities is pollution from coal-fired power plants and industrial smokestacks many miles away, combined with emissions from traffic on urban roadways. Smog can trigger chest pain, coughing, and airway inflammation. Long-term exposure can cause permanent lung damage or abnormal lung development in children.

This rollback of Obama-era clean air standards was made despite the fact that the EPA has designated over 300 counties of the United States, clustered around the most heavily populated areas (especially in California and the Northeast), as failing to comply with the National Ambient Air Quality Standards

Counties of the [[United States]] that violated the 8-hour [[ozone]] safety standard of the [[United States Environmental Protection Agency]], as of June 2007, or are designated as “maintenance” areas, which require ongoing attention to avoid violating the ozone safety standard.

EPA/Government of the United States

The DC Circuit decision
Judge Gregory Katsas, who served as a deputy White House counsel before President Donald Trump named him to the District of Columbia U.S. Circuit Court of Appeals in 2017, joined Judges Judith Rogers and Thomas Griffith in finding that the administration’s so-called “Close-Out Rule” was not permissible under the Clean Air Act.

The court’s ruling requires the EPA to draw up a new plan for addressing the nation’s long-standing problems with ground-level ozone, or smog, to meet the requirements of the Clean Air Act. “As shown, the Close-Out Rule rests on an interpretation of the Good Neighbor Provision now rejected by this court. At the same time, the rule imposes no obligations, so vacating it will cause no disruption. Thus, vacatur is appropriate,” the panel wrote.

The judges also noted the EPA likely intends to challenge its previous findings in Wisconsin v. EPA and the current decision, either by asking for rehearing or petitioning the court for an en banc rehearing. The agency has until Oct. 29 to do so, according to Courthouse News.

From the Griffith Observatory in Southern California, the viewer gets a perfect look at the smog covering Los Angeles like a blanket.

Kaname85 via YouTube

Six states, New York City and a huge number of environmental groups challenged the EPA’s 2018 change in the rule, arguing that over 36 million people in 49 counties are affected by chronic respiratory diseases and scarring of the lungs due to exposure to smog. So there were a lot of comments over the ruling on Tuesday.

“In Houston, our communities have never breathed clean air in accordance with federal standards set by the Clean Air Act,” Juan Parras, executive director for the Texas Environmental Justice Advocacy Services said in a statement. “We have shouldered the real-life impacts for far too long. This is a huge step to clean up ozone and air toxics pollution in environmental justice communities and to better the lives of millions of people across the nation.”

Neil Gormley, who represented the environmental advocacy group Earthjustice, said in a statement that the decision was “another big win for public health and the environment. Now it’s past time for the EPA to stop stalling and do its job.