A U.S. Court of Appeals recently refused to consider an appeals panel ruling that the agency overstepped authority granted by the Clean Air Act in setting new standards for smog and soot. But the court was deeply divided. Two of the 11 judges didn’t participate, and five of the nine who did participate voted to rehear the case. Six votes are required for review.
“This opinion puts EPA in a very strong position for future legal action,” the agency said. It also said it will recommend that the Justice Dept. seek a review before the Supreme Court. “While the appeals process moves forward, we will continue to pursue all available options to secure cleaner air for the American people,” said EPA Administrator Carol Browner. The agency had previously said it would seek legislative changes if it loses in the courts.
Last May, a three-judge appeals court panel, in a 2-1 vote, rejected EPA’s argument that the Clean Air Act gives it unlimited power to set air quality standards for soot (particulate matter) and smog (ozone). The panel also agreed with the American Trucking Assns., which maintained that EPA hadn’t been even-handed in setting new restrictions. Specifically, ATA charged that the agency had failed to consider the beneficial health effects of ground-level ozone along with its detrimental effects.
As the matter now stands, EPA must review and revise the standards, then must go through another rulemaking process. Those standards include an ozone reduction from the existing 0.12 parts per million to a more stringent 0.085 ppm. They also include a new eight-hour ozone measurement to replace the current one-hour standard and changes in the way particulate matter is measured. ATA says the changes would cost the trucking industry $45 billion a year.