Wednesday, February 25, 2009

American Farm Bureau Federation v. EPA

Feb 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 061410, consolidated with 06-1411, 06-1415, 06-1416, 06-1417.In this high profile case involving many states, environmental organizations and industry groups the Appeals Court considered several challenges to U.S. EPA's most recent revision of the National Ambient Air Quality Standards for particulate matter [See WIMS 9/21/06]. The Appeals Court said, "Because the agency promulgated standards for fine particulate matter that were, in several respects, contrary to law and unsupported by adequately reasoned decisionmaking, we grant the petitions for review in part and remand those standards to the agency for further proceedings. We deny the petitions for review of the agency’s standards for coarse particulate matter because those standards are not arbitrary, capricious, or otherwise contrary to law."

The court explained the three sets of petitioners, joined by several intervenors and amici, filed petitions for review of the EPA’s final rule. The American Lung Association, Environmental Defense, and the National Parks Conservation Association (environmental petitioners) challenge the primary annual and secondary standards for fine PM as well as the elimination of the annual standard for coarse PM. Several states and state agencies (state petitioners) challenge the primary annual fine PM standard. The American Farm Bureau Federation, the National Pork Producers Council, the National Cattlemen’s Beef Association, and the Agricultural Retailers Association (industry petitioners) challenge the EPA’s retention of the PM10 indicator for coarse PM and the 150 µg/m3 level for the daily coarse PM standard.

The Appeals Court explains the various Parts of its decisions as follows. "In Part II we grant in part the petitions for review of the primary annual fine PM standard, brought by the states and environmental groups, and remand the standard to the EPA for reconsideration. The EPA failed to explain adequately why an annual level of 15 µg/m3 is 'requisite to protect the public health,' including the health of vulnerable subpopulations, while providing 'an adequate margin of safety.'

"In Part III we grant in full the petition for review of the secondary NAAQS for fine PM brought by the environmental groups and remand them to the EPA for reconsideration. The EPA unreasonably concluded that the NAAQS are adequate to protect the public welfare from adverse effects on visibility.

"In Part IV we deny the petitions for review of the primary daily standards for coarse PM brought by the industry groups. We do not reach the question raised by the amicus National Association of Home Builders whether the EPA lawfully could have distinguished between urban and nonurban coarse PM in selecting the coarse PM indicator.

"Finally, in Part V, we deny the petition for review of the EPA’s revocation of the primary annual standard for coarse PM brought by the environmental groups."

New York Attorney General Andrew Cuomo who led a coalition of 18 states and cities in the case announced that they had "won a major victory in a challenge of lax Bush Environmental Protection Agency (EPA) standards for fine soot pollution that had wholly failed to protect public health, particularly for children, elderly people and other vulnerable populations." Attorney General Cuomo said, “In an epic victory for New York State and the entire country, my office has ensured that politics don’t come in the way of public health and environmental protection. The EPA is charged with protecting the environment, yet the Bush administration had misconstrued the purpose of this agency, using it as a tool to facilitate pollution instead of combating it. As a result of this victory, millions of New York residents will have a chance to breathe easier. My office will work with the new Obama administration to make sure that new more protective soot standards are issued quickly.”

The states, cities and other state agencies joining Cuomo in the challenge included: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The States of Arizona, Maryland and Massachusetts also joined as friends of the court.

The American Lung Association (ALA) issued a release saying they challenged the EPA’s standards, "because the science clearly showed that the standards set in 2006 failed to adequately protect public health." Stephen Nolan, American Lung Association National Board Chair said, “Strong, protective national air quality standards are fundamental for healthy air. Today’s triumph will save countless lives and is an important step forward in the American Lung Association’s continued work to fight for air."

Earthjustice attorney Paul Cort who represented ALA, Environmental Defense Fund, and National Parks Conservation Association in the case said, "This is a huge victory for anyone who breathes. Particulate matter is one of the most deadly forms of pollution out there today. The Bush EPA refused to follow the advice of leading health advocates as well as its own scientists who argued that a stronger standard was needed to protect public health. Today's ruling corrects that injustice."

Bob Stallman, President, American Farm Bureau Federation issued a statement saying, “Because of Tuesday’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the Environmental Protection Agency’s regulatory standards related to rural dust, farmers and ranchers could face additional and unwarranted regulations as states attempt to comply with federal standards. Farm Bureau challenged the EPA’s Clean Air Act National Ambient Air Quality Standards rule for coarse particulate matter, but the court chose to disregard the overall lack of scientific support for the rule.

“Farm Bureau is disappointed in the outcome and concerned about costly measures to regulate rural dust that could be imposed on our farmers and ranchers. EPA’s own studies had failed to demonstrate adverse health effects associated with rural dust, which comes mostly from naturally occurring organic materials such as plants, sand and soil. Most disappointing is that the court suggested industry had the burden of proving that dust from agricultural sources was safe, rather than EPA proving within a margin of safety that the emissions caused harm. These dust standards are revised every five years, so it is difficult to predict the final impact of the ruling. However, during a time when farmers and ranchers are already struggling with the economics of producing food and fiber, the possibility of this leading to more regulatory costs does not bode well, especially since science does not show that any health benefits would result.”

Access the complete 50-page opinion (click here). Access a release from Attorney General Cuomo (click here). Access a release from ALA (click here). Access a release from Earthjustice (click here). Access the statement from the Farm Bureau (click here).

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