Earthjustice today gave formal notice that it plans to go to court to require EPA to identify which areas are violating federal air quality standards for smog. EPA was required by law to complete such nonattainment designations by mid-2000, but the agency has yet to do so.
"Existing designations inaccurately give a clean bill of health to numerous areas that suffer smog levels shown to cause asthma attacks in children and adults," said Howard Fox of Earthjustice, attorney for four national public health and environmental organizations joining the effort. "The public has a right to designations based on reality – not wishful thinking."
Existing nonattainment designations reflect a 23-year-old ozone standard issued in 1979 (0.12 parts per million ozone, one-hour average.) But a compelling array of post-1979 scientific evidence shows that asthma attacks, respiratory-related hospitalizations, lung function decreases, painful breathing, and other respiratory impairments occur even at ozone levels meeting the 1979 standard. Therefore, EPA in 1997 issued a new, more protective standard (0.08 ppm, 8-hour average).
Under the Clean Air Act, the first key step towards implementing a new air quality standard is to designate the areas where air quality violates the standard. Then, for those nonattainment areas, states must prepare and submit for EPA approval air pollution control plans sufficient to eliminate the violations.
In 1998 Congress set a deadline of July 2000 for EPA to issue designations under the 1997 ozone standard. Nearly two years after that deadline, EPA has yet to do so. Moreover, an appropriations rider barring EPA from using funds for issuing designations expired in February 2001 – thus depriving EPA of any possible excuse for not fulfilling its clear duty to issue them. But even a resounding EPA court victory this past March – in which the United States Court of Appeals for the District of Columbia Circuit rejected key industry challenges to the 1997 standards – did not move the agency noticeably closer to issuing designations.
"EPA has successfully defended the 1997 smog standards in a marathon industry lawsuit that went all the way to the Supreme Court and back," said Fox. "That victory will mean little, however, if the agency leaves the new standard on the shelf, instead of getting states started on the cleanup required by law. The 120 million Americans who live in areas with unhealthy ozone levels deserve no less."
Today's formal notice was in a letter notifying EPA Administrator Christine Todd Whitman that EPA's inaction violates the law, and that several groups plan to go to court to compel the agency to issue the designations. Under the law, such litigation can begin sixty days from today.
Earthjustice's clients in the letter are American Lung Association, Environmental Defense, Natural Resources Defense Council, and Sierra Club. Also joining the letter through their counsel Clean Air Task Force are Alabama Environmental Council, Clean Air Council, Michigan Environmental Council, Ohio Environmental Council, and Southern Alliance for Clean Energy.
Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.