Delay in New Ozone Standard

On September 2, 2011, President Obama decided to delay updating new ozone standards until 2013, when EPA is required to reconsider the standards. This delay is seen as a victory for regulated industry as it removes a small part of the EPA’s regulatory Train Wreck that threatens to burden regulated industries and ratepayers with much higher costs.

In July of 1997, the EPA replaced the previous one-hour standard with an eight-hour standard of 84 parts per billion. Environmental groups and some states challenged the new 8-hour rule in court. The U.S. Supreme Court upheld the standards rejecting the argument that EPA must balance health benefits with compliance costs. Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 471 (2001).

In March 2008, EPA finalized a rule setting the Primary and Secondary standards at 75 parts per billion. On May 27, 2008, numerous environmental groups and health organizations filed a lawsuit against the EPA claiming that EPA was failing to protect public health and the environment with its issuance of lower standards. American Lung, Association v. EPA, D.C. Cir., No. 08-1203, 5/27/08. 14 states, and two cities filed lawsuits against the EPA for its decision to set the standard at 75 parts per billion in 2008 during the Bush administration. New York v. EPA, D.C. Cir. No. 08-1202, 5/27/08. Meanwhile, Mississippi and several industry groups filed petitions claiming the new standards were too strict. Mississippi v. EPA, D.C. Cir., No. 08-1200, 5/23/08. Wisconsin is not among the states participating in the lawsuits.

The groups suspended the lawsuits following the election of President Obama and the EPA’s promise to consider stricter standards.

President Obama’s recent decision to delay updating ozone standards is a victory for regulated industries. However, the victory may be small when placed against the EPA Train Wreck and its numerous regulations now going into effect that place a heavy burden on utilities and ratepayers.

A study conducted by the American Coalition for Clean Coal shows that certain regulations included in the Train Wreck would increase the cost burden on electricity consumers and lead to job loss.  These regulations increase costs on businesses; which ultimately means increased costs for consumers.  The study predicts that implementation of CSPAR and MACT rules included in the Train Wreck will increase the average electricity price 11.5% by 2016. Wisconsin can expect to have an above average increase at 21.7%. These same regulations will likely result in a net job loss of 1.44 million in the United States with 24,500 losses in Wisconsin alone.

The American Lung Association and the Natural Resources Defense Council have decided to renew their lawsuits against the EPA. Currently, the 1997 standard appears to be the only enforceable standard.  State regulators are not sure whether they will have to implement the 2008 standards on top of the 1997 standards, or whether they will have to wait until 2013 for the required update. They must wait until the court decides the various renewed lawsuits.  

On September 13, the DNR held a public hearing to hear comments on the state’s 1997 8-hour ozone standard redesignation request. Written comments may be submitted until September 30, 2011.

Read EPA’s final rule on the 8-hour standard.

For more information regarding Ozone regulation click here.

This post was authored by GLLF’s intern, Lane Oling, a 2L at the University of Wisconsin Law School.