D.C. Circuit Grants DOJ Request to Hold EPA’s 2015 Ozone Standards Cases in Abeyance

In an order issued last week, the D.C. Circuit granted DOJ’s request in Murray Energy Corp. v. EPA, No. 15-1385, to hold in abeyance challenges to EPA’s 2015 update to the ozone National Ambient Air Quality Standards (NAAQS).  The Clean Air Act requires EPA to issue NAAQS for certain air pollutants including ozone, and to review those standards every five years.  EPA previously revised the ozone NAAQS in 2008, and set primary and secondary ozone standards at 75 parts per billion (ppb).  Upon finding that a more stringent standard was required to protect the public against the health effects associated with long- and short-term ozone exposure, the Obama Administration’s EPA lowered the primary and secondary standards to 70 ppb in October 2015.  Litigation challenging the rule began almost immediately after it was promulgated.  Industry groups as well as a group of states filed petitions for review in the D.C. Circuit, arguing that the 70 ppb standard was too stringent.  Environmental organizations also challenged the rule, arguing that it did not go far enough.

DOJ’s motion, submitted to the court earlier this month, asked the court to either continue oral argument that was scheduled for April 19, or in the alternative, hold the case in abeyance until the EPA has completed a review of the 2015 update.  DOJ made arguments similar to those it offered in its motions to hold in abeyance the Clean Power Plan and New Source Performance Standards, including that, “in light of the recent change in administration, … EPA intends to closely review the 2015 Rule, and the prior positions taken by the Agency with respect to the 2015 Rule may not necessarily reflect its ultimate conclusions after that review is complete.”  In addition, DOJ argued that the “continuance is appropriate because recently-appointed EPA officials in the new Administration will be closely scrutinizing the 2015 Rule to determine whether the standards should be maintained, modified, or otherwise reconsidered.”

DOJ also stated that the industry and state petitioners did not oppose the request to hold the case in abeyance.  Public health and environmental organizations including American Lung Association, Appalachian Mountain Club, National Parks Conservation Association, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, and West Harlem Environmental Action, Inc. filed a motion in opposition.

The D.C. Circuit’s order removes the case from its oral argument calendar, holds the case in abeyance, and directs EPA to file status reports on the agency’s review of the rule at 90-day intervals.  The court commented that it “disfavors motions to postpone oral argument” and reminded DOJ that “it is imperative that the court be notified promptly when a potential issue arises that affects the date of oral argument.”

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