Smog and Soot Rules Clear Final Legal Hurdle

By Cat Lazaroff

WASHINGTON, DC, March 27, 2002 (ENS) - A federal appeals court has dismissed the final challenges to a 1997 clean air rule aimed at reducing smog and soot pollution throughout the nation. Conservation groups and the Bush administration are hailing the decision, handed down Tuesday, as a major victory for those who support the government's right to protect public health and the environment over business interests.


Since 1997, the EPA has been prevented by litigation from implementing rules aimed at reducing air pollution from smog and soot. (Two photos courtesy EPA)
A three judge panel of the U.S. Court of Appeals for the DC Circuit rejected challenges by the auto industry and three states to ambient air standards for fine particles and ground level ozone set by the U.S. Environmental Protection Agency (EPA) in 1997. The EPA has been prevented from implementing the so called smog and soot rule for almost five years by these legal challenges.

Now, the agency says it can move forward with implementing and enforcing the new standards, which are intended to protect Americans from health problems such as respiratory illnesses and premature death cause by air pollution.

"Today's unanimous decision is a significant victory in EPA's ongoing efforts to protect the health of millions of Americans from the dangers of air pollution," said EPA Administrator Christie Whitman. "EPA now has a clear path to move forward to ensure that all Americans can breathe cleaner air."

With a unanimous vote, the appeals court rejected the claim that the EPA acted arbitrarily in setting the national ambient air quality standards. The three judge panel found that EPA "engaged in reasoned decision making" in establishing pollutant levels to protect public health and the environment.


The EPA's 1997 rules reduce the amount of pollution that trucks and other vehicles will be allowed to emit
The Clean Air Act requires that the EPA review all its air standards every five years to make sure they reflect the latest and best scientific evidence. In 1997, based on thousands of new health studies, the agency toughened its standards for smog and, for the first time, set a standard specifically for fine particles equal to or smaller than 2.5 microns in diameter.

Fine particles include airborne soot from sources such as diesel trucks and power plants. Smog is caused by emissions from cars, power plants, chemical plants, petroleum refineries and a variety of other sources.

The EPA's new standards were challenged by the American Trucking Association, the U.S. Chamber of Commerce and other state and business groups. A three judge panel from the same court initially set the standards aside on constitutional grounds.

But in February 2001, the Supreme Court overturned that decision, and upheld the EPA's authority under the Clean Air Act to set national air quality standards that protect the American public from air pollution. The Supreme Court also unanimously rejected an industry argument that the EPA should have based the standards on a cost benefit analysis, rather than on the impact of pollution on public health.

The Supreme Court returned the case to the appeals court for any further action. Tuesday's decision rejected the remaining claims that the EPA's decision was arbitrary and capricious and not supported by scientific evidence.

power plant

Coal burning power plants are a major source of smog and soot pollution (Photo by Carole Swinehart, courtesy Michigan Sea Extension)
"This is a huge victory for breathers," said Frank O'Donnell, executive director of the nonprofit Clean Air Trust. "Now there is no excuse for EPA to drag its feet in enforcing the standards. It is time for EPA to follow through with the promise of cleaner air made nearly five years ago."

The EPA said Tuesday it is now moving ahead, in partnership with state and local governments, to develop programs to meet the new smog and soot standards.

Two issues remain for the agency to resolve. First, the Supreme Court, though finding no fault with the standards themselves, ordered the EPA to reexamine its proposed approach for implementing them.

Second, the DC Circuit in 1999 ordered the EPA to consider industry claims that smog allegedly helps human health by screening ultraviolet rays. The EPA's proposed response argues that such alleged benefits are speculative and do not warrant weakening the 1997 ozone standard.

The agency has not yet proposed any response to the implementation issue.


Trash incinerators emit tiny particles of pollution (Photo courtesy Lake Michigan Federation)
"The ball is now in EPA's court," said Howard Fox of Earthjustice, which intervened in the litigation on behalf of American Lung Association to oppose challenges by industry and three states. "The agency must move forward promptly to resolve the remaining issues, so that the public can finally reap the health benefits of these long delayed standards."

When the EPA issued the standards in 1997, it estimated that when implemented the standards would protect 125 million Americans from adverse health effects of air pollution and each year would prevent 15,000 premature deaths, 350,000 cases of aggravated asthma, and one million cases of decreased lung function in children.

Since then, a body of scientific research has strengthened the medical basis for the standards. On March 6, 2002, the Journal of the American Medical Association published a study of 500,000 people across the country finding that prolonged exposure to air contaminated with fine particles raises the risk of dying of lung cancer or other heart and lung diseases.

Other recent studies have linked ozone with increased risk of birth defects and of asthma in children, and have suggested that exposure to particulates and ozone increases the risk of stroke in adults. A study of the 90 largest U.S. cities found strong evidence linking daily increases in soot to increases in daily death rates, and in hospital admissions of the elderly.


Implementation of the smog and soot rules will fall to EPA Adminstrator Christie Whitman (Photo courtesy EPA)
"Industry is so eager to avoid cleanup, it has tied up these key public health standards in court for five years," said Fox. "Now that the court has spoken, it's time for industry to stop its multi-year obstructionist tactics and get on with the important job of controlling its pollution to meet these standards."

The DC Circuit Court's decision is available at: