EPA, Advocates Tussle Over Scope of Ozone ‘Backsliding’ Action

The EPA took the stand Monday to defend the lift of “backsliding” air quality measures, a decision targeted by environmentalists who want to keep heavy ozone pollution under the strictest standards possible.

A panel at the U.S. Court of Appeals for the District of Columbia Circuit grappled with arguments in Sierra Club v. EPA, a lawsuit brought by advocates who claim the agency cannot scrap backsliding provisions—even for revoked National Ambient Air Quality Standards—without first designating the area under “attainment” of national standards.

The Sierra Club sued the Environmental Protection Agency after it revoked backsliding measures for Dallas and Houston under their State Implementation Plans. The EPA, supported by Texas and industry groups, wants the case dismissed under the claim the rule involves designations set only for those cities and thus belongs under the purview of the regional Fifth U.S. Circuit Court of Appeals.

“The face of the actions has direct legal consequences only for the Houston and Dallas areas,” according to EPA counsel Megan Greenfield.

Wider Scope Argued

But Sierra Club and other petitioners insisted the scope of the backsliding rescission is U.S.-wide, which falls squarely with the D.C. Circuit. Further, the EPA was “arbitrary and capricious” in its decision not to designate the action as nationally applicable.

The agency “effectively invented a new regulation to again allow it to weaken clean air protections,” Earthjustice attorney Seth Johnson told the panel, which included Chief Judge Sri Srinivasan and Judge Gregory Katsas.

Judge David Tatel asked Johnson how the backsliding rules could be nationally applicable if they “expressly say” the action doesn’t legally apply to any other location.

“All we do is look at the face [of a complaint], that’s it under our case law,” Tatel said. “And everything on the face of the document says it’s locally applicable.”

The case hinges on EPA’s actions following a 2018 D.C. Circuit decision in South Coast Air Quality Management District v. EPA, where judges scrapped certain EPA air quality designation methods under National Ambient Air Quality Standards.

The EPA insists it followed all applicable procedures under the Clean Air Act when revoking the backsliding measures for the Texas areas, but since the EPA made that decision under the nationally applicable decision in South Coast, environmentalists say their action extends beyond Texas.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is Sierra Club, et al v. EPA, D.C. Ct. App., No. 20-01121, Oral argument 5/9/22