Today the D.C. Circuit rejected an EPA attempt to delay the deadline for cities and counties to bring unhealthy levels of ozone pollution—also known as smog—down to safe levels. The court also rejected the EPA’s attempt to prematurely let some areas out of an important pollution control requirement designed to permanently lower smog levels. We represented NRDC in the case.
Let’s be frank: it’s not a sexy case. It’s not a cat video. It doesn’t lend itself to being distilled into an internet meme.
Nevertheless, it is a good example of how, in the fine details of the regulatory process, the EPA attempts to dodge the Clean Air Act’s requirements for timely and effective pollution reduction. When the EPA makes these attempts, it puts our lungs at risk.
Some important background: in 2008, EPA set a standard for acceptable smog levels in the air people breathe, then in 2012, it determined which cities and counties did not meet the new standards. Those areas receive a certain number of years to clean up their air. The dirtier the air, the longer they get. We previously won a case forcing EPA to follow the procedures Congress laid out in the Clean Air Act to make sure the air gets safer to breathe.
In May 2012, EPA decided to give polluted cities and counties an extra seven months beyond the years Congress provided to clean up their air. Cleanup deadlines would be at the end of December, rather than in May. What difference does seven months make, you ask? Well, in much of the country, due to the chemistry of ozone formation, ozone problems happen in the summer. Without EPA’s extension of the air cleanup deadlines, dirty air areas would have to clean up before the summer ozone problem. With EPA’s extension, those areas are allowed an extra year’s worth of pollution. That’s an extra year’s worth of asthma attacks, missed school and work, and premature deaths. What would your lungs say to that?
Thankfully, the court said that EPA was wrong to interpret the Clean Air Act as allowing it to extend the air cleanup deadlines. Congress really wanted clean air so that people could breathe without harming their lungs. Up to 1990, EPA had allowed dirty air to linger, so Congress reined EPA in. EPA tried to go against that congressional judgment when it extended the deadlines, but that’s illegal.
Also in May 2012, EPA tried to weaken a protection against smog resulting from cars and trucks. It said that some cities and counties that have had smog problems would no longer have to check what ozone pollution would result from future transportation plans before ozone pollution reaches unhealthy levels. (The transportation plans basically say what the city or county’s networks of roads, bridges, highways, buses, trains and the like will be, and how they’ll manage and fund them.) This matters because a lot of ozone pollution comes from transportation emissions.
Congress recognized this and barred cities and counties with dirty air from doing things like expanding their highway systems in ways that will worsen ozone problems either in the affected area or downwind. And to keep cities and counties from sliding back into unhealthy air, Congress said that even after an area cleans up its air, it still must keep its highway system from making the air unhealthy. Congress wanted to make sure cities’ transportation plans would keep their air clean before cities were allowed to move forward with their plans.
Similar to the deadlines issue, the court rejected EPA’s attempt to let some cities and counties make transportation plans without evaluating how these plans would affect the air we breathe. The Clean Air Act makes clear which areas have to undertake this planning, and EPA was going against that clear directive.
The Clean Air Act is carefully detailed. Congress took on the serious problem of making the air safe to breathe when it wrote and rewrote it. Like an intricately woven cloth, it works best for its purpose—cleaning up the air—when all its strands are intact. By holding EPA accountable, we’re fighting to keep the cloth from being unwoven. And, sometimes, that leads to some knotty cases. But they will make a difference to people where the promise of clean air hasn’t always been realized, and that’s what matters.