An Environmental Protection Agency plan to cut ozone-causing air pollution in Louisiana, Mississippi and Texas has been put on hold by an interim decision filed Monday by a split three-judge panel of the U.S. 5th Circuit Court of Appeals.
The revised EPA “Good Neighbor Plan” filed in the Federal Register on March 15 is aimed at reducing emissions in 23 states that cross state lines and contribute to the formation of smog, the brown haze that includes ozone-causing chemicals and smoke.
Part of the plan rejects an implementation strategy filed by the Louisiana Department of Environmental Quality in 2019, and similar state plans filed by Texas and Mississippi.
EPA says the cost of achieving the expected reduction in all the states would total about $1.1 billion by 2026. But it said the reductions would reduce premature deaths resulting from ozone by 1,000, cut hospital and emergency room visits by more than 2,000, reduce asthma symptom cases by 1.3 million, and reduce school absence days by 470,000.
But on Monday, the split appeals panel ruled that in substituting its federal implementation plan for the state plans, EPA acted arbritarily and capriciously, and the federal plan should be halted until the 5th Circuit completes its review.
The panel also threw out a request by EPA to block the review by the 5th Circuit requested by the states and other government and non-government organizations of EPA’s actions on grounds that the case should have been heard in the D.C. Circuit Court of Appeals, or should have been dismissed because that court was the proper place for a review to be filed.
The appeals panel decision was agreed to by Judges Kurt Engelhardt and Cory Wilson, both appointed to the court by former President Donald Trump, and was written by Engelhardt. Judge Dana Douglas, appointed by President Joe Biden, filed a dissent opinion that said the case should have been transferred to the D.C. Circuit, or should have been dismissed because it should have been filed with that court.
The Biden Administration’s EPA leadership reversed decisions by the Trump administration that would have allowed Texas, Louisiana and other states to implement their own, less-restrictive plans for reducing ozone emissions.
EPA revised its ozone air quality regulations in 2015, lowering allowable concentrations of ozone in the air from 75 parts per billion to 70 parts per billion. That triggered a requirement that the states craft “state implementation plans” to implement the change, including plans for compliance with the Clean Air Act’s “Good Neighbor Provision,” which requires states to prohibit emissions that contribute to nonattainment of the limits in neighboring states.
In February, EPA disapproved more than 20 state implementation plans that had been filed during the Trump administration because of lack of compliance with the Good Neighbor Provision, and on March 15, EPA issued its own state implementation plans for 23 states.
Three of those states — Louisiana, Mississippi and Texas — and a number of government agencies and non-governmental organizations, asked the 5th Circuit to review the February disapproval.
The 5th Circuit panel ruling said it would consider those petitions, but first would deal with five initial motions involving those review requests.
In a 2-1 vote, the panel denied EPA’s motion to transfer the petitions to the D.C. Circuit Court of Appeals, which EPA said should hear the challenges because they involve national pollution issues that the Clean Air Act (CAA) says should be reviewed by that court. It also by a 2-1 vote denied EPA’s motion to dismiss the reviews because they were filed in the 5th Circuit and not the D.C. Circuit.
By the same 2-1 margin, the panel voted to grant motions to stay EPA’s denial of the Texas and Louisiana state implementation plans.
The opinion concluded that the “action” taken by EPA under its state implementation plan denial announcement was a separate decision for each state, and thus not a national action. That allowed it to be filed in the 5th Circuit. Douglas disagreed, concluding that the action taken by EPA involved multiple states and was based on the national ozone standards.
Leave a Reply