On July 23, 2013, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) affirmed the Environmental Protection Agency’s (“EPA”) primary National Ambient Air Quality Standards (“NAAQS”) for ozone that were adopted during the Bush Administration in 2008. In addition, the D.C. Circuit reversed, but left in place pending remand, EPA’s secondary ozone standards. While EPA’s primary standards are designed to protect health, the secondary standards are designed to protect the environment. The decision is notable because former EPA Administrator Lisa Jackson, appointed by President Obama, had publically stated that she thought both sets of standards were legally and scientifically indefensible and had previously tried to reconsider them. The White House, however, stepped in and ordered EPA to maintain the standards in place pending EPA’s normal five-year review of these and other standards. EPA’s new review of the NAAQS is now under way.
In another EPA air quality ruling, on July 19, 2013, the U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit”), in a 2-1 ruling, affirmed EPA’s disapproval of Oklahoma’s regional haze plan and its imposition of a federal plan. Regional haze plans are required to make determinations of Best Available Retrofit Technology (“BART”) for certain large industrial sources, including electric generating units. Oklahoma’s BART determinations previously did not require that eligible facilities install scrubbers to remove sulfur dioxide, and instead required the continued use of low-sulfur coal. However, EPA found that Oklahoma’s decision was contrary to the Clean Air Act and EPA guidelines. The Tenth Circuit affirmed. As a result, the Tenth Circuit’s decision could prove influential in other court cases reviewing similar rulings from EPA disapproving of other state’s BART determinations.