Back in 2007, U.S. EPA was sued by some States and environmental groups who challenged the legitimacy of the ozone standard -75 parts per billion (ppb)- selected by the Bush Administration. In 2009, the Obama Administration announced that it was reconsidering the 75 ppb standard.
Ostensibly 75 ppb remains on the table. However, U.S. EPA is likely to revise the standard to somewhere between 60 ppb to 70 ppb. Back in September 16, 2009, U.S. EPA filed a pleading informing the Court that it would finalize the new standard by August 31, 2010.
As the election looms and the economy’s lack of a strong recovery is playing a bigger role, U.S. EPA’s revised ozone standard has been sharply criticized as raising costs on industry. U.S. EPA estimated the cost of compliance at between $19 billion to $90 billion a year by 2020, which will be largely imposed on manufacturers, oil refiners and utilities.
The U.S. Supreme Court determined in Whitman v American Trucking that U.S. EPA could not consider costs in setting the standard. The Court held EPA can only consider costs if its expressly granted that authority by Congress:
Section 109(b) [of the Clean Air Act] does not permit the Administrator to consider implementation costs in setting NAAQS. Because the CAA often expressly grants the EPA the authority to consider implementation costs, a provision for costs will not be inferred from its ambiguous provisions.
The Bush Administration standard of 75 ppb was criticized as not meeting the standard established by the Court because it was inconsistent with recommendations by the EPA’s science advisory panel.
While EPA may not be able to consider costs, it apparently can consider politics. On August 20th, EPA filed a brief with the U.S. Court of Appeals District of Columbia informing the Court that it will take longer to finalize the new standard.
"EPA expects that this process will take approximately two months longer than initially estimate. Thus, EPA’s current schedule is to sign a final rule on the reconsideration of the 2008 Ozone standard on or about the end of October 2010."
End of October…or may sometime after November 2, 2010?