Can the EPA Escape Enforcing Obama Era Ozone Protections Under the Clean Air Act?
By Emily Van Dam*
In 2015, the Obama administration lowered the acceptable amount of ozone in the ambient air. This move, pursuant to the Environmental Protection Agency’s (“EPA”) authority under the Clean Air Act (“CAA”), was estimated to prevent worsening asthma for approximately 440,000 children over the next ten years, as well as saving hundreds of lives and reducing the amount of hospital visits due to respiratory illness. The Trump Administration, however, has recently balked at enforcing key provisions necessary to implementing this lower standard. In response, environmental groups like EarthJustice have threatened to bring suit to force the EPA to comply. While it is likely they will have standing to sue the government in court, it is far from certain they will prevail because the EPA has statutory authority to grant delays if certain conditions are met.
This entire process is governed by the CAA. The CAA allows the EPA to set a National Ambient Air Quality Standard (“NAAQS”) for various pollutants. In 2015, the EPA, under the Obama administration, lowered the NAAQS for ozone from 75 ppb to 70 ppb. Under the structure of the CAA, the states then had one year to classify different areas in their state as meeting (“attainment”) or not meeting (“non-attainment”) the new NAAQS. Meanwhile, the EPA had a maximum of two years to promulgate these designations; the designation of an area would then trigger other provisions of the statute, meaning that once an area has been determined to have contaminate levels that exceed the NAAQS by the EPA, the statute requires that plans be put in place to reduce those levels to bring the area into compliance with the law.
Since the Obama Administration promulgated the revised standard in 2015, the EPA had until October 1 of 2017 to list the designations. Such designations are critical to enforcing CAA provisions because “[a]ir quality designations determine what type of federally-required implementation plan is appropriate for each area and what permitting standards apply.” In June, 2017, however, the EPA, under the Trump Administration, announced that they would delay the designation of these areas under the newer regulations. In response, sixteen states, led by New York, filed a complaint against the EPA on August 1, 2017. Presumably at least partially in response to the enormous pressure it was facing, the EPA announced that it was revoking the extension and would be meeting the October 1, 2017 deadline.
That deadline has come and passed, however, with no indication that the EPA actually plans on promulgating those designations any time soon. As a result, EarthJustice, representing ten different organizations, including the American Lung Association and the Sierra Club, has filed a notice of intent to file a citizens suit to enforce the CAA. The first hurdle that EarthJustice must pass will be demonstrating to the court that the promulgation of these designations is a non-discretionary duty, or an action that the EPA must carry out, under the CAA. Such a demonstration is necessary to sue under the citizen’s suit provision of the act.
It is highly likely that EarthJustice, or other similarly situated plaintiffs, will be able to meet this bar. First, in a similar case over the designation of areas for a different NAAQS, the EPA did not even attempt to dispute liability under the act, choosing instead to enter into a consent decree with plaintiffs. A consent decree is a way to settle a case, with both sides reaching an agreement that the defendant will take certain steps or actions to remedy the situation; such an agreement is especially useful because it is supervised, and enforced if necessary, by a court.
While the EPA previously refused to do so, the agency is entitled to change its mind and dispute liability in the future, but that will likely fail. In another case involving the EPA, the court was very clear that “[b]y employing the verb ‘shall,’ Congress vested a non-discretionary duty in EPA.” The statute in question similarly employs the word “shall” when describing the EPA’s action in promulgating the designations. The language of the statute itself is clear: the EPA shall have two years to promulgate the designations of these areas. Since the language here is remarkably straightforward and the time frame is clear, it will be very difficult for the EPA to argue that Congress vested any discretion in them for the interpretation of this specific provision.
Even if environmental groups succeed in being allowed to proceed with their lawsuit, however, they likely face an uphill battle. First, the statute allows for a one-year extension, beyond the two years, “in the event the Administrator has insufficient information to promulgate the designations.” The Administrator, Scott Pruitt, has yet to make such a claim, but it is within his statutory power to do so. It is possible that groups could bring a claim arguing that there is sufficient information, but courts have allowed such an extension in the past when the EPA has noted some uncertainty in which approaches and sources the EPA would use. For example, in Sierra Club v. McCarthy, the EPA had initially done just that, noting the scientific complexities and “unique source specific impacts” of the pollutant. Even if the EPA is successful here, however, it is only a minor delay; for example, in the previous case, McCarthy, the EPA was sued after they failed to comply with the statute even after taking the extension. The statute caps the extension at one year, so in October of 2018, the EPA will face this same issue.
That year may, however, give the EPA time to develop a long-term solution. For example, a bill has already passed the House of Representatives that would extend the deadline to 2025. While it is unclear how it will fare in the Senate (no date is currently even set for debate), it is possible there will be Congressional action to delay these designations. Additionally, a past court granted the EPA some leeway in the timeframe, despite the plane language of the statute, finding it important to “preserv[e] EPA’s discretion” in determining the designations of these areas.
It is likely that environmental groups will be permitted to sue the EPA under the citizen’s suit provision of the CAA, but it is also likely that EPA will be able to use it statutory authority to grant itself an additional year to make these determinations. While it is clear from the statute that the EPA has a duty to promulgate these designations, it is not clear when, if ever, this will happen, given the length of time of litigation and EPA’s abilities to both delay and to promulgate new regulations as it sees fit.
* Emily Van Dam is an Associate Editor on MJEAL. She can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
 42 U.S.C. § 7409 (2011).
 Nidhi Subbaraman, The Trump Administration Just Lost a Battle Over Smog Rules, BuzzFeed News (Aug. 6, 2017), https://www.buzzfeed.com/nidhisubbaraman/battle-over-ozone-smog-rules?utm_term=.covo3D9BN#.lykb2J4QZ.
 42 U.S.C. § 7409(a)(2) (2008).
 Subbaraman, supra note 2.
 42 U.S.C. § 7407(d)(1)(A).
 42 U.S.C. § 7407(d)(1)(B).
 Sierra Club v. McCarthy, No. 13-cv-03953-SI, 2015 U.S. Dist. LEXIS 24953, at *7 (N.D. Cal. Mar. 2, 2015).
 News Release, Environmental Protection Agency, EPA to Extend Deadline for 2015 Ozone NAAQS Area Designations (June 6, 2017), https://www.epa.gov/newsreleases/epa-extend-deadline-2015-ozone-naaqs-area-designations.
 Petition for Review, State of New York v. United States Environmental Protection Agency, No. 17-1185 (D.C. Cir. Aug. 1, 2017).
 Lisa Friedman, E.P.A. Reverses Course on Ozone Rule, New York Times (Aug. 3, 2017).
 Press Release, EarthJustice, Health & Environmental Organizations Warn EPA They Plan to Sue Over Delayed Smog Cleanup (Oct. 4, 2017), https://earthjustice.org/news/press/2017/health-environmental-organizations-warn-epa-they-plan-to-sue-over-delayed-smog-cleanup.
 Letter of Intent to Sue from Laura Dumais, Attorney, EarthJustice, et al to Scott Pruitt, Administrator, U.S. Environmental Protection Agency (Oct. 3, 2017), https://earthjustice.org/sites/default/files/files/_Notice%20of%20Intent%20to%20Sue_10-03-2017.pdf.
 Friends of the Earth v. United States EPA, 934 F. Supp. 2d 40, 52 (D.D.C. 2013) (distinguishing between nondiscretionary actions, over which a district court has jurisdiction to compel under the CAA’s citizen suit provision, and discretionary actions, over which the court does not.).
 Sierra Club v. McCarthy, No. C 13-3953 SI, 2013 U.S. Dist. LEXIS 184925, at *7 (N.D. Cal. Dec. 6, 2013).
 Coal for Responsible Reg., Inc. v. EPA, 401 U.S. App. D.C. 306, 330, 684 F.3d 102, 126 (2012).
 42 U.S.C. § 7407(d)(1)(B).
 Sierra Club v. McCarthy, No. 13-cv-03953-SI, 2015 U.S. Dist. LEXIS 24953, at *9 (N.D. Cal. Mar. 2, 2015).
 42 U.S.C. § 7407(d)(1)(B).
 Subbaraman, supra note 2.
 Sierra Club, No. 13-cv-03953-SI, at *4.