On Thursday, EPA finally released its final rule revising the ozone NAAQS to 70 ppb. I do not spend much time peering into a crystal ball, but I will go out on a limb and say that the industry challenges to the rule will fail. Just ain't gonna happen.
The environmental group challenges pose a more interesting question. There's a fair bit of evidence of health impacts below 70 ppb, so how can the rule be said to provide the requisite "adequate margin of safety"? This case will be a fascinating extension of the recent cases exploring the role of the Clean Air Science Advisory Committee in supporting EPA rules, and how much the deference given to EPA by the courts in such a technical area is affected by the courts' conclusions regarding whether EPA has truly followed CASAC's advice.
On balance, I suspect that the rule will survive the environmental challenges as well. EPA has clearly read the recent cases about CASAC's role and the rule positions EPA so that a court will find that EPA adequately considered CASAC's advice. After all, CASAC may have found impacts as low as 60 ppb, but it did not recommend that the NAAQS be set at 60 ppb or even 65 ppb. Instead, it merely suggested a range from 60 ppb to 70 ppb.
The industry challenges will be based largely on arguments that, with a standard of 70 ppb, EPA is at risk of requiring certain states to meet a level that is below background. These arguments seemed doomed to me. The rule more than adequately addresses the background issue.
Finally, I'll note that I predicted a standard of 70 ppb last September. I can't say that I was the only one, but I did at least get that right.
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