Court Overturns Illegal Bush-era Soot Pollution Standard

A coalition of 18 states and cities, led by the State of New York, claimed a major victory in their challenge of the Bush standards for fine soot pollution that New York Attorney General Andrew Cuomo said wholly failed to protect public health, particularly for children, elderly people and other vulnerable populations.

"In an epic victory for New York State and the entire country, my office has ensured that politics don’t come in the way of public health and environmental protection," said Cuomo.

"The EPA is charged with protecting the environment, yet the Bush administration had misconstrued the purpose of this agency, using it as a tool to facilitate pollution instead of combating it. As a result of this victory, millions of New York residents will have a chance to breathe easier. My office will work with the new Obama administration to make sure that new more protective soot standards are issued quickly."

Earthjustice, an environmental law firm, filed a separate lawsuit on behalf of the American Lung Association, Environmental Defense Fund, and National Parks Conservation Association. The two suits were consolidated by the federal Court of Appeals for the D.C. Circuit, which issued a decision on them both.

The Bush administration had rejected recommendations by its science advisors for stronger airborne particulate standards, and the court ruled that this action was arbitrary. The standards at issue limit levels of soot, smoke, and other airborne particles linked to tens of thousands of premature deaths each year.

"This is a huge victory for anyone who breathes," said Earthjustice attorney Paul Cort. "Particulate matter is one of the most deadly forms of pollution out there today. The Bush EPA refused to follow the advice of leading health advocates as well as its own scientists who argued that a stronger standard was needed to protect public health. Today's ruling corrects that injustice."

Sooty air hangs over Shreveport, Louisiana. (Photo credit unknown)

In October 2006, the EPA rejected the advice of its own scientific advisory panel and staff scientists for a stronger annual standard for fine particulate matter air pollution.

The Clean Air Scientific Advisory Committee had recommended strengthening the existing annual standard of 15 micrograms per cubic meter for fine particulate matter, originally set in 1997, to between 13 and 14 micrograms per cubic meter.

According to the court opinion, "In sum, the EPA did not adequately explain why an annual level of 15 micrograms per cubic meter is sufficient to protect the public health while providing an adequate margin of safety from short-term exposures and from morbidity affecting vulnerable subpopulations."

The court held that "in several respects," EPA's refusal to adopt stronger standards was "contrary to law and unsupported by adequately reasoned decisionmaking."

"This victory is especially important, because the public health threat posed is so grave," said Janice Nolen, assistant vice president for national policy and advocacy with the American Lung Association. "Particulate matter can kill, and shortens the lives of tens of thousands every year."

"We encourage EPA to return to the clear scientific evidence and adopt standards that will protect the millions living in areas plagued with unhealthy levels of air pollution as the Clean Air Act requires," Nolen said.

Large portions of New York State, including New York City and Long Island, have levels of fine soot pollution above the level recommended by EPA's science advisory panel and rejected by the Bush EPA. Scientists in Cuomo's Environmental Protection Bureau told the court that strengthening the annual fine soot standard by just 1 to 2 micrograms per cubic meter could prevent hundreds of premature deaths in the New York City area annually and save hundreds of millions of dollars in health care costs.

The court also overturned the Bush administration's refusal to adopt a separate, stronger standard to protect visibility that is often impaired by particulate pollution. Again, EPA science advisors and EPA's own staff had recommended a more protective standard to prevent the clouding of urban skies with polluted haze. The court held that EPA had failed to justify its rejection of these recommendations.

"This decision is long overdue for our national parks. One in three parks is clouded in haze due to this type of pollution," said Mark Wenzler, clean air and climate director at National Parks Conservation Association. "We're hopeful that EPA's new leaders will use this decision as an opportunity to restore clear vistas to America's treasured scenic landscapes."

Airborne particulate matter is comprised of tiny particles of smoke, soot, metals and other chemical compounds emitted from sources like power plants, factories, and diesel trucks that can become lodged deep in lungs.

It is linked to the aggravation of respiratory illnesses such as asthma, bronchitis, emphysema, chronic obstructive lung disease, and pneumonia, and to premature deaths from other causes, such as lung cancer and heart disease.

"We hope America's new leadership responds swiftly to protect the elderly and the children who are especially hard hit by lethal particulate pollution," said Vickie Patton, deputy general counsel for the Environmental Defense Fund. "By following the science where her predecessors faltered, EPA Administrator Lisa Jackson can reclaim lost ground in protecting Americans from the death and disease caused by particulate pollution."

The Clean Air Act requires the EPA to adopt primary air quality standards for particulate matter pollution to protect public health and secondary standards to protect public welfare, including visibility. The EPA must review these standards every five years and revise them based on the latest scientific information.

The states, cities and other state agencies joining in the lawsuit are: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The states of Arizona, Maryland and Massachusetts also joined as friends of the court.

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