In 2015, the United States Environmental Protection Agency (“EPA”), under the direction of the then-administer Gina McCarthy, began a series of rulemaking actions aimed at reducing the national ambient air quality standards (NAAQS) for ozone. The ozone levels had been set at 75 parts per billion, but under the final rule published in 2015, that number was reduced to 70 parts per billion.
Ozone exists in the atmosphere in both the stratosphere and the troposphere. The stratosphere is the layer of “air” surrounding our earth that begins around six to ten miles above the surface, and extends upwards approximately 30 miles. Here, atmospheric ozone absorbs harmful ultraviolet sunlight that can cause cancer. Atmospheric ozone is considered to be “good ozone” when it exists in the stratosphere.
The troposphere is the layer of air nearest to the surface of the earth. In the troposphere, ozone can be very dangerous because it is toxic to living systems in high concentrations, causes smog, acid rain, and cancer. Atmospheric ozone is considered to be “bad ozone” when it exists in the troposphere.
As mentioned, in an effort to reduce the toxic effects of ozone, EPA lowered the NAAQS standard for ozone. One of the next steps to implement these new ozone standards is that EPA had planned to ensure that all areas across the country are properly designated. The designation is to ensure that EPA will know which areas are meeting the ozone standard, and which are not. The deadline for EPA to finalize these designations was October 1, 2017.
In June, 2017, Administrator Scott Pruitt attempted to extend the October 1 deadline. Pruitt issued a news release stating that he was extending the ozone designations deadline by one year. Then, facing legal challenges, EPA issued a news release in August 2017, stating that, rather than issuing an extension, it was moving forward with the designations.
In the August news release, Administrator Scott Pruitt was quoted saying that, “[u]nder previous Administrations, EPA would often fail to meet designation deadlines, and then wait to be sued by activist groups . . . . [EPA does] not believe in regulation through litigation, and we take deadlines seriously.” However, despite Pruitt’s statement, October first has now passed, EPA has not fulfilled its legal obligation to meet designation deadlines, and a notice of intent to sue EPA was mailed out.
Earthjustice, previously known as the Sierra Club Legal Defense Fund, sent to Administrator Pruitt a notice of intent to sue for failure to meet the designation deadlines.The notice states that Administrator Pruitt is “in violation of [his] nondiscretionary duties” under the Clean Air Act. The letter further states that unless EPA fully performs its duties within sixty days, Earthjustice will, on behalf of organizations like the Sierra Club, the American Lung Association, and the Environmental Defense Fund, commence a civil action to enforce these duties. The Earthjustice notice is dated October 3, 2017, so EPA has until December to meet its legal obligation of designating areas for ozone.
Sources Referenced:
Click to access implementation_memo.pdf
https://www.epa.gov/ozone-pollution/table-historical-ozone-national-ambient-air-quality-standards-naaqs
Click to access 2015-26594.pdf
http://www.ozonelayer.noaa.gov/science/basics.htm
https://www.epa.gov/newsreleases/epa-extend-deadline-2015-ozone-naaqs-area-designations
https://www.law360.com/articles/959099
https://www.epa.gov/newsreleases/epa-continues-work-states-2015-ozone-designations
Click to access _Notice%20of%20Intent%20to%20Sue_10-03-2017.pdf
https://www.law360.com/environmental/articles/971063/epa-s-blown-ozone-deadline-prompts-enviro-lawsuit-threat?nl_pk=24390c13-a019-4ca7-a861-1550e1e7373c&utm_source=newsletter&utm_medium=email&utm_campaign=environmental&read_more=1