EPA Asks DC Cir. to Pause States’ Ozone Standards Challenge While it Reconsiders Rule Extension

A motion submitted last Friday by the Department of Justice on behalf of the Environmental Protection Agency (EPA) and others asks the D.C. Circuit Court of Appeals to hold a set of consolidated ozone regulation cases in abeyance until December 15, so that the agency can reconsider the decision. The petitioners, including states and environmental advocacy groups, asked for review of the EPA’s Dec. 31, 2020 decision to retain existing ozone National Ambient Air Quality Standards (NAAQS) promulgated in 2015.

In January, more than a dozen states and New York City argued that the 2020 decision ignores science suggesting that the public health risks posed by ozone require tighter restrictions. By November 5, the states will brief their support or opposition of the instant motion. In addition, a coalition of six state intervenors opposed the requested relief, and instead asked the court to hear the cases’ merits.

The motion explains that in its planned notice-and-comment rulemaking process, the agency will solicit input from the Clean Air Scientific Advisory Committee regarding “policy-relevant science” to obtain the best and most up-to-date information during the forthcoming reconsideration. The EPA’s goal, the motion said, is to complete the review by the end of 2023.

The EPA argues that an abeyance is an efficient approach, allowing the agency’s revised final decision to “serve as the proper vehicle for any remaining challenges and which ensures that the Court will have the benefit of EPA’s most up-to-date views and explanations for its decision.”

In support of its motion, the agency argues that it would be premature to allow the case to proceed in view of its intention to review and possibly revise the challenged rule. An abeyance would allow the court and the parties to conserve resources, the agency adds. Finally, the EPA asserts that an abeyance would allow the agency to apply its expertise to correct errors and to “‘preserve the integrity of the administrative process.”