EPA Could See Legal Brawl Over Conflicting Air Pollution Advice

April 15, 2020, 10:01 AM

The EPA’s refusal to strengthen airborne particle pollution standards is likely to prompt a legal clash over how the agency should handle conflicting recommendations from its scientific experts and other advisers, lawyers say.

Administrator Andrew Wheeler said yesterday the Environmental Protection Agency would maintain existing thresholds for airborne particle pollution, including soot, which is released from fossil fuel combustion and linked to cardiac and respiratory illnesses.

The agency’s team of outside clean air advisers in December recommended keeping the 2012 standards unchanged. But agency staff and former science advisers have repeatedly argued that the existing standards don’t adequately protect human health.

If the EPA locks in the decision to keep the current standards intact—which Wheeler says he aims to do by year’s end—environmental and public health groups are expected to go to court to push for stronger protections.

The Clean Air Act gives Wheeler discretion to make the final decision, but the agency must give a solid rationale for its decision, said University of Pennsylvania law professor Cary Coglianese.

“If the agency’s decision is so contrary to experts’ recommendations or available facts adduced during the EPA’s administrative review of its ambient air quality standards, then a court might well find it to be arbitrary and capricious,” Coglianese said.

The EPA’s next steps are to field public comments, respond to substantive critiques, and finalize the plan. The U.S. Court of Appeals for the District of Columbia Circuit would then hear anticipated challenges to the agency’s justification for keeping the existing standards.

The exact nature of lawsuits would depend on the agency’s rationale, “but we can predict that there will be such challenges,” said Richard Revesz, director of New York University’s Institute of Policy Integrity.

Second-Guessing Wheeler

Judges haven’t shied away from forcing the EPA back to the drawing board before when the agency has ignored its own experts.

“It’s clearly a factor that courts have considered in the past and will consider in the future,” Revesz said.

In 2019, for example, the D.C. Circuit in Murray Energy Corp. v. EPA faulted the EPA for not adequately explaining why it adopted secondary ozone standards—designed to protect wildlife and plants—that were less stringent than scientific advisers recommended.

A decade earlier, the same court in American Farm Bureau Federation v. EPA struck down the agency’s fine particle standards because the limits were “contrary to law and unsupported by adequately reasoned decisionmaking.” The Obama administration’s EPA went on to strengthen those standards in 2012.

In both cases, judges ordered the EPA to explain its decision to forego stronger protections. The agency’s latest move could face the same fate in court, Natural Resources Defense Council attorney John Walke said.

So far, “I don’t think they do a remotely passable job of addressing and refuting mountains of scientific evidence that was included in EPA’s own policy assessment that the current standards are unprotective and they allow tens of thousands of deaths annually,” he said.

Uphill Battle

But challengers generally face an uphill battle contesting a final decision from the administrator, said Coglianese, who directs the Penn Program on Regulation.

“EPA has been pretty good over the years in finding and exploiting uncertainties or making the claim that more evidence is needed before ambient air quality standards are revised and made more stringent,” the law professor said.

Though EPA staff have called for stricter particulate matter standards, the December determination from the Clean Air Scientific Advisory Committee supports the agency’s decision to maintain current levels. Six of the seven advisers said the current standards are protective of public health.

Those advisers’ recommendations are given significant weight in court, said Jeffrey Holmstead, a Clean Air Act attorney with Bracewell LLP, referring back to the 2019 ozone ruling.

That case showed that “EPA will be on pretty solid ground if it follows the recommendations of the Clean Air Scientific Advisory Committee,” said Holmstead, who served as EPA’s assistant administrator for air and radiation under President George W. Bush.

Temple University environmental law professor Amy Sinden countered that the committee’s advice is undermined by the fact that it wasn’t unanimious, and conflicts with EPA staff conclusions.

“That’s going to be harder for the agency to defend,” she said.

But the diversity of views simply reinforces the administrator’s role, said McGuireWoods LLP attorney Aaron M. Flynn, who represents industry parties in Clean Air Act litigation.

“There’s a lot of different voices about what should happen,” he said. “And when that happens, the Clean Air Act invests the administrator with being the tiebreaker, with being the ultimate decision-maker.”

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com;Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com

To read more articles log in. To learn more about a subscription click here.