Federal Court Dismisses Challenge to White House Scuttling of Smog Rule

A legal challenge to the Obama administration’s decision not to issue proposed ozone standards last fall was dismissed on Friday after a three-judge panel with the U.S. Circuit Court of Appeals for the District of Columbia held that it did not have jurisdiction to review the action.

President Obama shelved the Environmental Protection Agency’s (EPA’s) draft final rule, "Reconsideration of the 2008 Ozone Primary and Secondary National Ambient Air Quality Standards (NAAQS)"—the so-called smog rule—last September in an attempt to “underscore the importance of reducing regu¬latory burdens and regulatory uncertainty.” The White House later said it reached its decision because the EPA had already finalized ozone-reducing measures, including its Cross-State Air Pollution Rule, and proposed national standards for mercury and toxic pollutants.

The proposed ozone standards would have tightened the 2008 NAAQS standard for ozone from 75 parts per billion to 70 parts per billion.

Health and environmental groups the American Lung Association, the Natural Resources Defense Council, the Environmental Defense Fund and the Appalachian Mountain Club had asked the federal court to decide whether the EPA had acted illegally and arbitrarily in withdrawing the proposed standard. But on Friday, the D.C. Circuit appeals court said it did not have jurisdiction to hear suits challenging the delay because the delay of the rule was not a “final agency action” reviewable by the court. The case is American Lung Association et al. v. EPA, et al.

In its ruling, however, the court said it would hear an ongoing suit challenging the merits of a 2008 Bush-era ozone NAAQS. Opening briefs in that case, State of Mississippi, et al. v. EPA, are due April 17 and final briefs are due on Aug. 27.

Sources: POWERnews, EPA, U.S. District Court of Appeals D.C. Circuit