US appeals court upholds EPA's stricter nitrogen dioxide standard
Washington (Platts)--17Jul2012/306 pm EDT/1906 GMT
A federal appeals court Tuesday rejected energy industry arguments
against the US Environmental Protection Agency for setting a new one-hour
primary national ambient air quality standard for nitrogen dioxide and found
that the agency was "justified" to revise the standard based on health
concerns even if it erred on the side of caution.
In deciding American Petroleum Institute v EPA (No. 10-1079), the US
Court of Appeals for the District of Columbia Circuit was not moved by the
oil, utility and natural gas petitioners' claims that the agency's setting of
a stricter NO2 standard, perhaps beyond what may be necessary for public
health, was "arbitrary and capricious" and in violation of the Clean Air Act.
EPA set the new primary one-hour NO2 standard, or NAAQS, of less than or
equal to 100 parts per billion in 2010, following a five-year review that
included various analyses and an assessment by the Clean Air Scientific
Advisory Committee as required by the law.
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The committee also concluded that the current annual NO2 standard set in
1971 was inadequate, and it recommended a one-hour standard no higher than
"Considering its duty to err on the side of caution, we conclude the EPA
did not act unreasonably by comparing the benefits of the one-hour standard
against not only a scenario based upon existing air quality but also upon an
alternate scenario in which areas just meet the annual NAAQS set in 1971,"
Senior Circuit Judge Douglas Ginsburg wrote for the court.
"For that reason, and because the record adequately supports the EPA's
conclusion that material negative health effects result from ambient air
concentrations as low as the 100 ppb level, we cannot conclude the agency was
arbitrary and capricious or violated the Act in adopting that level as the
new one-hour NAAQS for NO2."
API REVIEWING RULING
The court also concluded it lacked jurisdiction to rule on challenges to
the agency's stated preamble on implementing the standard because the
statement was not final.
In addition to API, the petitioners included the Utility Air Regulatory
Group and the Interstate Natural Gas Association of America. Nitrogen oxides,
including NO2 emissions, largely result from combustion involving vehicles
engines and electric generating units.
API said it was reviewing the ruling to determine if it would pursue
further legal action, and it criticized EPA for relying on "questionable
science." API contended that the agency should have given more weight to a
scientific study they offered that found "no causal relationship" between an
increase in ambient NO2 concentrations and an increase health effects.
"We are reviewing the ruling and will determine possible further
action," said Howard Feldman, API director of regulatory and scientific
policy. "By cherry picking data and relying on questionable science, EPA set
the new regulations at a level more stringent than necessary to protect
public health and is putting our economy and jobs unnecessarily at risk."
The court, however, concluded that EPA gave specific reasons for
disagreeing with the analysis favored by API and that the agency countered
that the law requires it to set standards to protect public health even if
the risks from the pollutant cannot be quantified.
"The EPA was therefore justified in revising the NAAQS considering the
evidence of a statistically significant relationship between relevant health
conditions and NO2 exposure at various concentrations, even if the agency did
not know the precise dose-response relationship between NO2 and airway
responsiveness, among other health effects," the court said.
Judges Judith Rogers and Harry Edwards presided over the case with
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--Edited by Robert DiNardo, firstname.lastname@example.org