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.

Article continues below...

Request a free trial of: Oilgram News
	Oilgram News brings fast-breaking global petroleum and gas news to your desktop every day. Our extensive global network of correspondents report on supply and demand trends, corporate news, government actions, exploration, technology, and much more.

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 100 ppb.

"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 Ginsburg.

--Cathy Cash, cathy_cash@platts.com
--Edited by Robert DiNardo, robert_dinardo@platts.com

Tweet