Groups Can’t Force New EPA Ozone Regs

Conservationists lost a battle in federal appeals court Monday in their efforts to force the Environmental Protection Agency to adopt new rules to prevent deterioration of air quality from ozone.

The 9th U.S. Circuit Court of Appeals upheld dismissal of a suit against the EPA by Wildearth Guardians, Sierra Club and the Midwest Environmental Defense.

Judge Paul Watford wrote that the groups may only bring citizen lawsuit if the law spells out a “clear-cut” and specific duty on the EPA to take action.

The appeals panel rejected the groups’ argument that the EPA had a mandatory duty to update regulations after a 2008 agency revision of National Ambient Air Quality Standards for ozone.

The EPA first issued the national air standards in 1971 for six pollutants: particulate matter, sulfur dioxide, photochemical oxidants (ozone), hydrocarbons, carbon monoxide and nitrogen dioxide.

In 1977, under a new Clean Air Act program, Prevention of Significant Deterioration, (PSD), Congress wanted to prevent air quality from getting worse in areas that already had relatively clean air.

New regulations were issued in 1979, but the EPA revised the ozone rules in 2008.  The environmental groups argued the EPA had a mandatory duty to revise its PSD regulations for ozone within two years.

Watford said the 1977 PSD law was anything but clear and thus the groups had no right to file a citizen lawsuit to force the EPA to act.

The court upheld dismissal of the lawsuit by U.S. District Judge Yvonne Gonzalez Rogers in Oakland.

Joining Watford were Judges William Canby and William Fletcher.

 

Case:  WildEarth Guardians v. McCarthy, No. 12-16797

 

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