Reacting to the latest expected attempt by industry to circumvent clean air standards, Earthjustice called the effort an attack on public health. Persisting in their multi-year battle, industry plaintiffs were expected to file briefs on Friday asking a federal court to strike down standards that protect clean air and public health. The plaintiffs are under a Friday court-imposed deadline to file their briefs.

“This is the latest salvo in industry’s war against the Clean Air Act and public health protections,” said Howard Fox of Earthjustice. Fox is representing the American Lung Association in the litigation. “They simply want out of having to clean up pollution that kills tens of thousands of Americans each year and sends tens of thousands more to the hospital with lung and heart ailments. After four years of litigation, it’s time for industry’s scorched-earth battle against public health to stop.”

The standards at issue address particles, known as soot, and ozone, known as smog. Soot and smog are the two most important air pollutants threatening public health today. Mounting evidence that prior standards were inadequate to protect against major health impacts – including death – forced EPA in July 1997 to issue strengthened national air quality standards for both pollutants.

EPA has estimated that as many as 15,000 deaths, 10,000 hospital admissions for respiratory and cardiopulmonary causes, tens of thousands of cases of respiratory illness, and millions of days of missed work and restricted activity will be prevented just by partial attainment of the new standards for particles. EPA also has estimated that its new standards for ozone will prevent tens of thousands of occurrences of asthma attacks and other respiratory problems and reductions in lung function. Such action will reduce hospital admissions and emergency room visits stemming from these kinds of health problems.

“EPA’s 1997 conclusions linking soot and smog to serious public health impacts have stood the test of time,” said Paul G. Billings of American Lung Association. “In fact, recent scientific evidence has given even greater cause for concern about these pollutants, linking particles to infant mortality and other serious health effects.”

Immediately after EPA issued the 1997 standards, numerous industry plaintiffs – representing the electric utility, petroleum, automobile, trucking, and chemical industries, among others – and Ohio, Michigan, and West Virginia filed suit against the standards in the United States Court of Appeals for the District of Columbia Circuit. In 1999, that court rejected most of these challenges. However, the court ruled that the Clean Air Act, and EPA’s interpretation of it, represented an unconstitutional delegation of Congress’s legislative authority.

EPA, the American Lung Association, and Massachusetts and New Jersey appealed this ruling to the US Supreme Court. In February 2001, that Court unanimously upheld the constitutionality of the Act. In addition, the Court unanimously rejected industry’s argument that air quality standards should be based on cost-benefit analysis, ruling that the Act unambiguously evidenced Congress’s intent that standards be based on public health. The Court agreed that costs are to be considered later in the process — only when standards are being implemented.

The Supreme Court sent the case back to the DC Circuit to rule on any preserved issues — those issues that had been properly raised during the 1998 briefing in the DC Circuit. Friday’s briefs represent the first round in a briefing schedule that will conclude in November of this year.

“Industry has used an army of lawyers to tie up in litigation these important public health standards for the past four years,” said Fox. “They’ve already had their day in court. Now it’s time for them to devote their considerable resources to complying with the new standards rather than fighting them.”

The briefs were filed in American Trucking Assns. v. USEPA, D.C. Cir. 97-1440 (soot) and 97-1441 (smog).

Earthjustice is the nonprofit law firm for the environment representing – without charge – hundreds of public interest clients, large and small. Earthjustice works through the courts to safeguard public lands, national forests, parks and wilderness areas; to reduce air and water pollution; to prevent toxic contamination; to preserve endangered species and wildlife habitat; and to achieve environmental justice.