The Nickel Report

In October 2015, EPA reduced the level of the National Ambient Air Quality Standards (“NAAQS”) for ozone from 75 parts per billion (“ppb”) to 70 ppb. What is happening concerning implementation of those NAAQS?

Although litigation over EPA’s decision to lower the ozone NAAQS remains in abeyance as the Trump Administration continues to consider whether the Agency should reconsider the rule or some part of it, the 2015 standard itself has not been stayed. Thus, the Clean Air Act requires that implementation of the standard proceed. One key step in implementation is promulgation by EPA of a list of areas where the standard is violated, including areas that contribute to standard violations in nearby areas. EPA’s identification of these “nonattainment” areas is a trigger for many of the Act’s control requirements.

Prior to EPA’s promulgation of a list of “nonattainment” areas, however, the Clean Air Act gives states a role identifying areas where a new or revised NAAQS is violated. The Act instructs each state governor to submit a list identifying for EPA each area within the state’s boundaries as “nonattainment,” “attainment” (areas that meet the NAAQS), or “unclassifiable” (areas whose status cannot be determined to be nonattainment or attainment based on available information). Tribes also have the option of providing such a list to EPA. These lists are to be provided to EPA within a year after promulgation of a new NAAQS. Within two years after promulgation of a new or revised NAAQS, whether or not it has received the required list from each state, EPA must promulgate “nonattainment,” “attainment,” or “unclassifiable” designations that cover all areas in the United States. The Act allows EPA to take up to an additional year, however, if it has “insufficient information to promulgate the designations.” “Insufficient information” is not defined by the Act. In 2010, however, EPA concluded that the Agency’s decision to reconsider the 75 ppb ozone NAAQS that had been promulgated in 2008 meant the Agency had insufficient information to promulgate designations for that standard.

Since the 70 ppb ozone NAAQS was signed and published in the Federal Register in October 2015, states and tribes have done their jobs and have submitted their lists of designations to EPA. According to the statutory schedule, the Agency must now promulgate designations for that standard this month unless it finds that it has insufficient information to do so. When will EPA promulgate the designations? That question is still open.

In June, EPA published notice in the Federal Register that it was extending the deadline for those designations until October 1, 2018. In support of that extension, the Agency cited “a host of complex issues regarding the 2015 ozone NAAQS and its implementation, such as understanding the role of background ozone levels and appropriately accounting for international transport.” Numerous environmental and public health groups and several states petitioned for judicial review of the deadline extension by the D.C. Circuit Court of Appeals, seeking summary vacatur or a stay of it. EPA thereafter withdrew its notice that it was extending the deadline and asked that the cases challenging it be dismissed as moot. The motion for dismissal was opposed. The petitioners asked, in the alternative, that the cases be held in abeyance until November 8. On October 6, the court granted the motion to hold the cases in abeyance, deferred consideration of the other motions and established November 8 as the deadline for motions to govern further proceedings.

In the meantime, perhaps concerned that their challenges to deadline extension would be dismissed, several health and environmental groups and several states notified EPA that they intended to bring an action against the agency for failing to have made the designations on time. The Act provides that anyone can sue EPA in federal district court when the Agency fails to perform a nondiscretionary duty. The Act requires that EPA be provided notice of the intent to bring such a “deadline suit” sixty days before the case is filed. The groups providing notice to EPA regarding designations for the 2015 NAAQS allege that promulgating such designations is a nondiscretionary duty that EPA has failed to perform in a timely manner. Because the initial notice to EPA was sent October 3, such a case can be filed no earlier than December.

So, what happens now? There are multiple possibilities:

• EPA could promptly promulgate the designations. To date, however, the Agency has given no indication that it intends to do so. Indeed, although EPA must notify states of its intent to modify any of the listed state or tribal designation at least 120 days prior to promulgating designations, there is no evidence that EPA has provided any such notice to any state. It would be unusual for EPA simply to adopt the designations of all states and tribes without modification.
• EPA could provide a revised and updated notice that it is extending the deadline for some or all of the designations. A revised notice would ideally explain in greater detail why the Agency does not currently have sufficient information to make those designations to which the extension would apply.
• EPA could allow a court proceeding to determine the schedule for EPA to make the required designations. This approach is not unprecedented. The schedules for designations for both the prior ozone NAAQS and a 2010 NAAQS for sulfur dioxide were established by consent decrees entered in deadline cases. Getting to the point at which a court establishes a schedule could take some time, perhaps enough to allow EPA to address the issues that initially led it to announce an extension to the deadline. Even if it engaged in settlement talks with the petitioners and potential plaintiffs in litigation concerning the designations, however, EPA would arguably have less control over the schedule than if it took the initiative to explain its need for more information.

Clarity concerning the schedule for these designations should be forthcoming. In the meantime, it should be noted that ozone levels continue to decline nationally. Furthermore, ozone reduction efforts continue related to implementation of prior ozone NAAQS.