August 2017

This week, the EPA announced that it changed its mind and that it will no longer seek to delay implementation of the 2015 ozone National Ambient Air Quality Standard.  As you may recall, earlier this year, EPA Administrator Pruitt, citing needs for regulatory certainty and flexibility, announced that the EPA would delay by one year implementation of the 2015 ozone standard.

As you may recall, the ATS joined several environmental and health groups in a court action seeking to block the EPA's attempts to delay the ozone standard.  In our legal action, the ATS noted that delaying implementation of the ozone standard would result in unnecessary harmful exposures to ozone air pollution and that these exposures would have adverse respiratory health effects for our patients.

While this is a win for clean air, some context is needed on why the EPA likely reversed their decision. First, the courts. In a separate air pollution court case, the DC District Court of Appeals ruled that the EPA could not delay enforcement of an existing final rule to limit methane emissions from oil and natural gas extraction projects.  The court affirmed that the EPA could rescind the rule or change the rule, but not before it went through the formal regulatory review process of public notice and comment to rescind or modify an existing rule. Therefore, the EPA had to move forward with enforcing the existing standard.

In related action, the ATS joined several public health and environmental groups seeking court relief to block the EPA's efforts to delay implementation of the ozone rule. The motion brought by the ATS, combined with the court's recent decision on the methane rule, probably convinced the EPA that their decision to delay the ozone rule would not survive legal challenge.

A second, and potentially more compelling reason, may have been the data. Due to persistent high temperatures across the U.S. in the summer of 2016 was a particularly bad year for ozone exposure.  It is highly likely that senior EPA staff realized that if they delayed implementation of the ozone rule until next year, they would likely be forced to use 2016 ozone exposure data – which would have likely shown more areas in the U.S. not meeting the 2015 standard.  By moving forward with a normal schedule, the EPA may seek to only use 2013-2015 ozone data – thereby excluding 2016 data and minimizing the ozone rule's reach.

Regardless of the EPA's motivation, this is a win for clean air.