Dive Brief:
- The Obama administration's new ozone rule is an "unachievable" standard that will not reduce smog, opponents told the United States Court of Appeals for the District of Columbia in a brief filed last week, the Hill reports.
- The new rules were passed last year to tighten the ozone standard from 75 parts per billion (ppb), to 70 ppb.
- But opponents argue the U.S. Environmental Protection Agency violated the Clean Air Act by failing to address sources beyond the states’ control, including background ozone coming into the United States from other countries, and other naturally-occurring sources.
Dive Insight:
Wisconsin Attorney General Brad Schimel and a coalition of states have challenged the final National Ambient Air Quality Standard (NAAQS) for Ozone rule, citing "impossible measures" the state would be required to undertake.
In October, the EPA finalized the new ozone standard, lowering the limit to 70 ppb; areas unable to attain the standard must take steps, possibly including installing control technology on manufacturing and energy facilities. Opponents of the rule say those measures could discourage jobs from being created in those areas.
“Wisconsin is expected to take impossible measures, like controlling the weather, under the new Ozone NAAQS,” Schimel said in a statement. “We will not tolerate another instance of the EPA’s unconstitutional abuse of power as it continues to hammer job makers in our state with costly regulation.”
In Murray Energy Corporation v. United States Environmental Protection Agency, 10 states argue the EPA violated the Clean Air Act by failing to address sources beyond the states’ control, such as background ozone coming into the United States from other countries, and ozone caused by events like lightning and wildfires.
Opponents are also questioning whether or not the EPA used adequate scientific justification for new NAAQS.
In their brief, opponents noted Sunland Park, N.M., a town of 15,000 people "cornered" between the New Mexico-Texas border to the east and the United States’ international border with Mexico to the south. The area has no major industry and contributes just 3% of the precursor substances that form ozone in the Paso del Norte airshed, they explained.
"In fact, New Mexico is virtually powerless to reduce the concentration of ozone around Sunland Park," they said in the brief. And because of its location relative to El Paso, it does not qualify for relief as a “rural transport area,” they claimed.
"Through no fault of its own, the State of New Mexico will now face heavy federal regulations and the threat of punitive sanctions, including loss of highway funds, for failing to do the impossible," opponents told the court. "The story of how Sunland Park’s attainment area became the target of regulations that New Mexico has no hope of satisfying begins with a legally flawed rule that fails to account for uncontrollable sources of ozone."
