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Industry Weighs Taking Ozone Pollution Case to Supreme Court

Nov. 12, 2019, 5:02 PM

Energy companies and business groups are considering asking the Supreme Court to review Obama-era standards for ozone pollution.

The U.S. Chamber of Commerce, American Petroleum Institute, and others on Nov. 8 asked Chief Justice John Roberts for extra time to weigh appealing a lower court’s decision that largely upheld the Environmental Protection Agency’s 2015 ozone caps.

The U.S. Court of Appeals for the District of Columbia Circuit in August rebuffed challenges from the industry groups, energy companies, and a coalition of mostly Republican-led states that said the Obama administration’s primary ozone standard of 70 parts per billion was too stringent.

If the opponents follow through on filing a petition and the Supreme Court accepts it, the case would be the most significant Clean Air Act dispute on the justices’ docket in years.

Ground-level ozone is the primary ingredient of smog, which can cause severe breathing problems for children and people with asthma. The Trump administration defended the Obama-era standards at the D.C. Circuit.

‘Important Questions’

The industry parties are focused on two arguments: that pollution standards should be looser to account for “background ozone” that drifts across borders or forms from natural sources; and that the EPA should have considered “adverse economic, social, and energy impacts” when crafting the measures.

“The D.C. Circuit’s rulings on the ‘background’ issue and the ‘adverse impacts’ issue raise important questions of federal environmental law,” the industry parties said in their new filing.

Joining the Chamber of Commerce and API on the filing were the National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, the Portland Cement Association, and Murray Energy Corp.

They’re asking for a routine extension until Jan. 17 to file a Supreme Court petition.

A spokesman for the attorney general’s office in Arizona, which led state challenges to the ozone standards, told Bloomberg Environment the state “will not be filing an appeal on behalf of the coalition of states.”

The application is Chamber of Commerce v. EPA, U.S., No. 19A519, 11/8/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com