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‘Shortcut’ Claims Against EPA Ozone Rule Draw Judges’ Skepticism

Sept. 28, 2022, 4:43 PM

Energy and manufacturing companies took aim at the Environmental Protection Agency’s revised Cross-State Air Pollution Rule in front of a federal appeals panel Wednesday, arguing the agency cut corners in finalizing the measure.

Midwest Ozone Group, an affiliation of power companies and other organizations, squared off with the EPA in oral arguments at the US Court of Appeals for the District of Columbia Circuit. The group sued the agency in 2021 over its new standards to stem traveling ozone pollution.

The “good neighbor” standards aim to curb wandering ozone emissions into downwind states that may have trouble meeting Clean Air Act requirements due to pollution blowing in from other states.

The EPA’s revised rule is more stringent than its Obama-era predecessor. It requires 12 states to better utilize their emission controls and install new controls ahead of next year’s summer ozone season.

The EPA made “abbreviated” decisions in crafting the new requirements, and “did so in a way that it took some shortcuts both technical and legal,” according to arguing attorney David M. Flannery of Steptoe & Johnson PLLC, counsel for Midwest Ozone Group.

Flannery told judges that the EPA took those shortcuts to meet a court-imposed 2021 deadline, which was set after the original Obama administration version of the Cross-State Air Pollution Rule was sent back for improvements by the DC Circuit.

In that rush, the agency failed to properly consider data of state contributions to wandering pollution and limited the public comment process, according to the group.

Data Issues

But judges seemed skeptical of the claim that the EPA acted hastily and against administrative procedure law when analyzing emissions data for the new rule.

Judge J. Michelle Childs asked whether the agency truly did fail to consider emission projection data adequately, when it used original data projections from previous years in the new rule considerations.

“You are also criticizing their method, but did you actually perform the proto-chemical modeling yourselves?” Childs asked.

Judge Neomi Rao also weighed in, urging Flannery to describe how the EPA’s methodology is arbitrary and capricious, and not just a process Midwest Ozone disagrees with.

Flannery said that lower court orders require more “detailed modeling,” and pointed to data comparisons made in the petitioner’s brief that shows EPA methodology overpredicts emissions by 24%.

The Justice Department’s Chloe Hamity Kolman, arguing for the EPA, told judges that Midwest Ozone Group’s claims “confuse” the EPA’s process in revising the Cross-State Air Pollution Rule.

Kolman said the agency’s methodology to predict emissions for future ozone seasons was sound and thorough, despite needing to meet a 2021 deadline.

“It’s hard to see that that district court deadline was really driving things here, but it’s also hard to see how the petitioner’s argument comes down to suggesting we should be violating two federal court orders instead of just one,” Kolman.

If the panel does let the methodology used by the agency stand, Childs asked whether there’s a chance EPA could continue to get creative with its processes in the future, despite the deadline circumstance in this case.

“I don’t think there’s a concern here that EPA is just sort of jaunting off in a new direction to just simplify its process,” Kolman said. “It did something very specific here to account for the deadlines in question.”

Judge Robert L. Wilkins also sat on the panel.

The case is Midwest Ozone Grp. v. EPA, D.C. Cir., No. 21-01146, Arguments 9/28/22.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Zachary Sherwood at zsherwood@bloombergindustry.com