Monday, April 1, 2013

Supreme Court Denies Hearing NAAQS NO2 Case

Apr 1: The U.S. Supreme Court (Case No. 12-760) denied a petition by the American Petroleum Institute (API) hear the case against U.S. EPA regarding the Agency's final rule adopting a new, one-hour primary national ambient air quality standard (NAAQS) for nitrogen dioxide.  On July 17, the U.S. Court of Appeals, D.C. Circuit, in Case Nos. 10-1079 & 10-1080, ruled  "We deny the petitions insofar as they challenge the EPA's adoption of the NAAQS, but because the EPA's statement in the preamble was not final, we lack jurisdiction to consider those portions of the petitions." API, the Utility Air Regulatory Group, and the Interstate Natural Gas Association of America (collectively the API) had petitioned for review of that rule, claiming EPA, in adopting the NAAQS, was arbitrary and capricious and violated the Clean Air Act. API also challenges a statement in the preamble to the final rule regarding EPA's intended implementation of the NAAQS [See WIMS 7/18/12].
    In its Final Rule, EPA adopted a new one-hour primary NAAQS, requiring in effect that "the three-year average of the annual 98th percentile of the daily maximum 1-hour average concentration [be] less than or equal to 100 ppb." The EPA concluded this standard was needed "to provide protection for asthmatics and other at-risk populations against an array of adverse respiratory health effects related to short-term NO2 exposure."
    The Appeals Court ruled in part, "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. 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."
    Access the Supreme Court order (click here, page 3). Access the Supreme Court docket (click here). Access EPA's NO2 NAAQS website for more information (click here). [#Air, #SupCt, #CADC]
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