The Clean Air Act requires the Environmental Protection Agency to set air quality standards despite scientific uncertainty, environmental groups told a federal appeals court in a case challenging the agency’s decision to retain existing nitrogen dioxide and sulfur dioxide standards intended to protect the environment (Center for Biological Diversity v. EPA, D.C. Cir., No. 12-1238, brief filed 11/30/12).
EPA cannot wait for scientific certainty before it sets an air quality standard, the Center for Biological Diversity, the Clean Air Council, and the National Parks Conservation Association said Nov. 30 in an opening brieffiled in the U.S. Court of Appeals for the District of Columbia Circuit.
The agency has acknowledged the existing secondary national ambient air quality standards, which were set in 1971, do not adequately protect the environment from the indirect effects of acid rain and other forms of acid deposition. However, in an April 3 final rule at 40 C.F.R. pt. 50, it retained the existing standards, saying it did not have enough information to set new standards and is planning a five-year field pilot program to collect data to help in the future development of a multi-pollutant standard (77 Fed. Reg. 20,218; 55 DEN A-1, 3/22/12).
“The statute does not limit EPA’s standard-setting duty to situations where data are complete and uncertainties eliminated,” the petitioners told the D.C. Circuit. “Rather, EPA must use its best judgment to specify, based on its review of the relevant factors and advice from the Scientific Advisory Committee, a standard that meets the statutory mandate despite remaining uncertainty.”
The petitioners asked the court to vacate the final rule and remand it to the agency to set a new standard within 14 months.
Read more at Bloomberg BNA. By Jessica Coomes.