Federal Appeals Court Rejects Effort to Compel Amended Grizzly Bear Recovery Plan

A federal appeals court turned away Jan. 19 a case that sought to force the U.S. Fish and Wildlife Service to update its recovery plan for the grizzly bear. The decision cast recovery plans as being outside the scope of a federal statute’s provision allowing for petitions to amend agency rules.

The Center for Biological Diversity filed a lawsuit seeking to compel amendment of USFWS’ framework for managing Ursus arctos horribilis after the agency rejected its 2014 petition. The Center asked USFWS to expand the grizzly bear recovery area to Arizona, California, New Mexico, and Utah.

The agency denied the environmental advocacy organization’s request on grounds that an Endangered Species Act recovery plan is not a “rule” under the Administrative Procedure Act. USFWS also said that it had focused recovery efforts only on regions of the country where the animal was present in 1975, the year grizzlies were added to the list of threatened and endangered species.

A federal court in Montana upheld the agency’s decision, holding that recovery plans are not APA rules. U.S. District Judge Dana Christensen’s Dec. 2020 decision said that ESA recovery plans do not implement law or policy.

“[T]he Center’s argument—in sum, that a recovery plan is a rule because it implements the statutory requirements for a recovery plan—is circular and therefore unpersuasive,” the court declared. “A recovery plan does not implement conservation policy because it does not, in and of itself, create change; it doesn’t put itself into effect.”

The net result of the analysis, Christensen argued, is that “the Center’s so-called ‘petition’ is simply a solicitation letter for which the Service had no legal obligation to respond (and correspondingly, its denial letter creates no rights or obligations and there is no final agency action).” As a result, the court lacked jurisdiction to order USFWS to respond to the petition.

Two judges on a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed Christensen’s ruling.

“The caselaw makes plain that adoption of a recovery plan is not agency action by which rights or obligations have been determined, or from which legal consequences will flow,” wrote senior U.S. circuit judge Andrew D. Hurwitz. “The Endangered Species Act does not mandate compliance with recovery plans for endangered species.”

Hurwitz’ opinion was joined by Judge Danny J. Boggs of the U.S. Court of Appeals for the 6th Circuit.

Judge Jennifer Sung, who joined the court last year, dissented.

USFWS first issued a recovery plan for U. arctos horribilis in 1982. The agency updated it in 1993, but not since.

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Justices will not hear dispute over Tongass exemption to national forest roadless area protection

This photo shows a portion of the Tongass National Forest. Image courtesy USDA Forest Service.

The U.S. Supreme Court will not take up a long-running dispute over preserving large areas of Alaska’s Tongass National Forest from logging.

The justices declined Monday to grant a petition for certiorari in the case, which involves an exemption from the landmark 2001 Roadless Area Conservation Rule, and allowed a lower court decision that bans regulatory changes based solely on political considerations to stand.

“Today’s court order is great news for southeast Alaska and for all those who visit this spectacular place,” Tom Waldo, an attorney at Earthjustice who represented environmental groups in the case, said.

Encompassing nearly 17 million acres, the Tongass is the world’s largest intact temperate rainforest. It extends along the coast of southeast Alaska for about 500 miles, with a variety of bays, coves, fjords, and glaciers within the national forest boundaries, and constitutes about seven percent of Alaska’s land. Wildlife found in the forest include salmon, wolves, brown and black bears, bald eagles, and the Arctic tern.

RACR was adopted by the administration of President William J. Clinton in January 2001, just days before the inauguration of a new President.  It did not initially exempt the Tongass. The U.S. Department of Agriculture Forest Service decided, during the process leading to RACR’s establishment, that the “long-term ecological benefits to the nation of conserving these inventoried roadless areas outweigh the potential economic loss to [southeast Alaska] communities.”

In 2003 the agency reversed itself. The agency, which had come under the leadership of President George W. Bush’s appointees, reached a conclusion exactly opposite to the one it had in 2001. This time, USDA Forest Service decided that “the social and economic hardships to Southeast Alaska outweigh the potential long-term ecological benefits” of RACR.

The Bush administration granted the RACR exemption to the Tongass as part of a settlement of a legal challenge to RACR filed by Alaska.

Environmental groups, an Alaskan native village, and a non-profit boat touring company challenged the exemption under the federal law that governs agency rulemaking. A divided panel of 11 judges on the U.S. Court of Appeals for the Ninth Circuit ruled in July 2015 that the agency had not adequately explained its change of mind.

Alaska asked the justices to review that decision on grounds that the San Francisco-based appeals court had read a 2009 opinion of the Supreme Court too broadly by assuming that it forbids changes in policy that are dictated by ideology.

That 2009 decision held that agencies must demonstrate “good reasons” for a change in policy direction indicated by a final regulation and that an explanation of that change has to include a “reasoned explanation . . . for disregarding the facts and circumstances that underlay or were engendered by the prior policy.”

USDA Forest Service is considering changes to the existing management plan for the Tongass that would permit continued old-growth logging for another 15 years. The agency released its proposed amendment to the Tongass National Forest Management Plan in Nov. 2015; it is likely to be adopted late this year.

President Barack Obama’s secretary of agriculture,  Tom Vilsack, directed the Forest Service in 2013 to shift timber production on the Tongass away from old-growth stands and toward young trees.

The case in which the Supreme Court declined to grant review is Alaska v. Organized Village of Kake, No. 15-467.

DC Circuit rejects request to stay Clean Power Plan

A federal appeals court has turned away an effort to delay the planned implementation of the Obama administration’s regulations to limit carbon dioxide emissions from power plants.

The U.S. Court of Appeals for the District of Columbia Circuit rejected Wednesday two petitions to stay the rules filed by a coalition of 15 states and a coal mining company.

“The petitions [are] denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the order said.

No announcement of the Clean Power Plan has yet appeared in the Federal Register, a step required by a law known as the Administrative Procedure Act before most federal regulations can take effect and by the Clean Air Act before it can be challenged in court.

President Barack Obama announced on Aug. 3 that the planned regulations are in final form. Although the Environmental Protection Agency has not publicly stated when the Clean Power Plan rule will be published, an agency website indicates that it is scheduled to go into effect on Nov. 13.

First proposed for new power plants in Sept. 2013 and for existing facilities in June 2014, the Clean Power Plan would require all power plants, including those that are newly constructed or modified, to limit the amount of carbon dioxide emissions produced when coal and natural gas is burned to produce electricity. The rule would generally delegate to the states the authority to develop and implement regulatory plans to achieve the reduction targets.

One of the petitions denied Wednesday was filed by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming. The other was filed by Peabody Energy Corporation.

Both petitions argued that the Clean Power Plan, which is based on a Clean Air Act section that relates to pollution from industrial facilities, is precluded by another section of that law relating to hazardous air pollutants. They also claimed that a delay of the rule is needed because there may be too little time between its publication by EPA and its effective date, which would put affected states and private entities in the position of having to begin work toward compliance before the legality of the regulation is decided by the federal courts.

“The final rule directs States to file plans or detailed “initial submittals” by Sept. 6, 2016,” Peabody’s motion said. “That is barely a year away and an eye-blink in the context of the multi-year planning horizon of energy suppliers, utilities, and private industry.”

The DC Circuit panel that issued Wednesday’s order did not comment on the merits of the arguments advanced by the states and Peabody. However, the same court ruled earlier this summer that the statute relied upon by the states and the coal company as a basis for blocking a federal rule before it takes effect does not affect the procedure for litigation specified by the Clean Air Act.

Climatologist Hansen, children sue to force aggressive U.S. response to climate change

A group of children, along with a former NASA climatologist made famous by his prescient warnings about climate change, has sued the U.S. government in a bid to force a more robust policy response to climate change.

Nominally aimed at blocking a facility that would allow the export of natural gas, the lawsuit could potentially result in a court order requiring the President to develop and implement a plan to reduce greenhouse gases enough to return the atmosphere’s carbon dioxide concentration to 350 parts per million.

“This lawsuit asks whether our government has a constitutional responsibility to leave a viable climate system for future generations,” Julia Olson, executive director of Our Children’s Trust and a lawyer representing the children, said. “The federal government has consciously chosen to endanger young people’s right to a stable climate system for the short-term economic interests of a few.”

Among the arguments raised by the lawsuit is one that invokes a century-plus old legal principle called the public trust doctrine.

Under the public trust doctrine, governments are held to a duty to protect certain natural assets from destruction by private parties.

As explained in an influential academic article published more than 40 years ago:

“The approach with the greatest historical support holds that certain interests are so intrinsically important to every citizen that their free availability tends to mark the society as one of citizens rather than of serfs,” the article by the late Joseph Sax, a renowned law professor, explains. “It is thought that, to protect those rights, it is necessary to be especially wary lest any particular individual or group acquire the power to control them.”

In other cases in which the public trust doctrine has been argued as an anvil to force state governments to protect the stability of the climate against human greenhouse gas emissions, courts have rejected the claim.

The new case is the first to be filed in a federal court. Captioned Juliana ex rel. Loznak v. United States of America, the lawsuit names President Barack Obama, seven cabinet officers, the Environmental Protection Agency administrator, the White House science advisor, the director of the Office of Management and Budget, and the director of the Council on Environmental Quality as defendants.

The plaintiffs, who include 21 children between the ages of eight and 19 years and climate scientist James Hansen, also allege that ongoing government support, financial and otherwise, of fossil fuel extraction and use violates their constitutional rights to equal protection of the law and to due process under the law.

“Our nation’s climate system, including the atmosphere and oceans, is critical to Plaintiffs’ rights to life, liberty, and property,” the complaint alleges. “Our nation’s climate system has been, and continues to be, harmed by Defendants.”

The lawsuit asks a federal district judge to order the Obama administration to reduce the nation’s use of fossil fuels and to act specifically to reduce the carbon dioxide concentration of the planet’s atmosphere.

If successful, the litigation would also derail the planned Jordan Cove Liquid Natural Gas terminal in Coos Bay, Ore. If it becomes operational, that project would account for more carbon dioxide to the atmosphere than any other single industrial facility in the state.

The Federal Energy Regulatory Commission must approve the Jordan Cove facility before it can be built. FERC expects to release an environmental impact statement that examines the project later this month.

The youth plaintiffs, along with Dr. Hansen and an environmental organization, filed their lawsuit Aug. 12 in the federal court in Eugene, Ore.

Ninth Circuit rejects Tongass National Forest exemption to Roadless Rule

A federal appeals court has turned aside an attempt to exempt Alaska’s Tongass National Forest from a nationwide regulation protecting roadless areas.

Judge Andrew Hurwitz, writing for a majority of eleven judges sitting as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, concluded that the effort to prevent the Roadless Area Conservation Rule from applying to the country’s largest national forest violated the main federal law that governs agency rulemaking.

The majority held July 29 that the U.S. Department of Agriculture, the parent agency of the Forest Service, had reversed a finding made during the process of enacting RACR that exempting the Tongass “would risk the loss of important roadless area values” without any explanation.

“Elections have policy consequences,” Hurwitz wrote. “But . . . even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.”

The 69,000 square kilometer-large Tongass National Forest is the largest remaining temperate rainforest on the planet. Among the wildlife that depend on it are five stocks of Pacific salmon, grizzly and black bears, bald eagles, arctic terns, and the imperiled Alexander Archipelago wolf.

RACR, which was finalized shortly before President William J. Clinton left office in Jan. 2001, was the subject of a barrage of lawsuits. The rule did not go into effect until a federal appeals court in Denver rejected the last remaining legal attack on it in 2011.

Three judges dissented from the ruling, which might end a fight that began shortly after the administration of President George W. Bush wrote the Tongass exemption into the Code of Federal Regulations in Dec. 2003.

The state of Alaska and the Alaska Forest Association, Inc., which defended the Tongass exemption, could seek review of the Ninth Circuit’s decision.

The case is Organized Village of Kake v. U.S. Department of Agriculture, No. 11-35517.

Supreme Court rejects mercury emissions rule

The U.S. Supreme Court has rejected the Obama administration’s effort to limit emissions of mercury and other toxic air pollutants from coal-fired power plants.

The 5-4 decision held that the Environmental Protection Agency should have considered costs the regulations may impose on industry.

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” Justice Antonin Scalia wrote for the majority.

The regulation was issued under a section of the Clean Air Act that demands that it be “appropriate and necessary.” The federal appeals court in Washington, D.C. had ruled that this clause of the CAA does not require EPA to consider compliance costs at the stage of deciding whether to regulate.

EPA has worked to impose limits on mercury emissions from electrical facilities for more than two decades. The agency decided in Dec. 2000 that the CAA standard of “appropriate and necessary” compelled regulation of power plant mercury emissions.

A predecessor to the current regulation, issued by President George W. Bush’s administration in Mar. 2005, was struck down by a federal appeals court in 2008.

The regulations at issue before the Supreme Court, formally known as the Mercury and Air Toxics Standards, were finalized in February 2012.

The agency argued that the regulation would produce public health benefits worth tens of billions of dollars.

The decision, which was supported by the five justices appointed by Republican Presidents, does not eliminate the legal effectiveness of the  regulations. Instead, the Court remanded the regulation to the agency, which basically means that EPA must reconsider it.

The case is Michigan v. Environmental Protection Agency, No. 14-46.

Supreme Court poised to decide fate of mercury emission limits

The fate of a contentious U.S. Environmental Protection Agency rule limiting mercury emissions from electric power plants will be decided by the nation’s highest court sometime in the next few days in a case that could force EPA to factor in regulatory compliance costs when deciding if an air pollutant is harmful to human health.

The case turns on the question when EPA must consider industry’s compliance costs in the process of imposing emission limits on the category of air pollutants that are considered hazardous to human health and the environment.

Section 112 of the Clean Air Act imposes the requirement of a so-called “air toxics determination” before the agency can set limits on the discharge of those toxic pollutants to the atmosphere.

The statute provides that EPA must “list” all sources of air pollutants that  “present[] a threat of adverse effects to human health or the environment” that “warrant[] regulation under this section.” Once EPA lists a source of such a hazardous air pollutant, the agency is required to set standards that achieve the “maximum degree of reduction in emissions,” considering factors including compliance costs, energy requirements, and non-emission related health and environmental impacts.

The administration of former President Bill Clinton decided in Dec. 2000 that regulation of mercury, particulates, and toxic gases from electric  power plants is necessary to protect public health and the environment. The subsequent administration sought to alter that determination, but its effort to do so was rejected by a federal appeals court in 2008.

The Obama administration proceeded with development of a so-called Mercury Air Toxics rule and finalized it in Feb. 2012.

According to a fact sheet prepared by EPA, the rule would likely save up to 11,000 lives per year. About 1,400 coal-and oil-fired power plants would be affected.

During the process of finalizing the MACT rule, EPA evaluated the costs that electric utilities may incur in order to comply with the 2012 emission limits. The agency determined that the total annual costs of compliance would be about $9.6 billion. That compares to yearly public health benefits that range from $37 billion to $90 billion.

Lawyers for industry and some state governments challenged the rule in court, arguing that EPA must consider industry’s costs of compliance with emission limits before deciding that regulation of those emissions is necessary.

They lost before the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in 2014 that EPA had properly considered costs at the stage of the process at which the emission limits were set.

Only one member of the three-judge panel that heard the case at the appeals court level, an appointee of former President George W. Bush, agreed with the industry lawyers’ argument.

“It’s just kind of inconceivable that Congress meant for EPA to do a cost-benefit analysis at the decision-to-regulate stage,” Karl S. Coplan, a professor of law at Pace University Law School, said. “It’s a technology-based limitation, not a health-based limit. EPA must consider costs at the stage of what the limit must be. There’s no point in making EPA consider costs at the should-we-regulate stage and then again at the what-the-limit-should-be stage.”

The Supreme Court has generally required federal courts to defer to agency interpretations of the statutes they administer if the language at issue is ambiguous and the agency’s reading is reasonable. This approach to deciding cases involving challenges to agency action, known as the Chevron doctrine, is a cornerstone of administrative law.

Coplan does not think that the MACT case before is likely to induce a majority of the justices to abandon the doctrine altogether.

“I think there are some justices that are uncomfortable with it,” he said. “But their discomfort seems to depend on which side it comes up. It’s fair to say that Justice Scalia is one of those who has expressed skepticism about it in the past.”

If the Court does not turn away from the Chevron doctrine, then the only rationale it would have to reject the MACT rule would be would be that the text of the Clean Air Act that appear to foreclose consideration of costs at the stage of deciding whether a pollutant is dangerous to human health and the environment actually does require the agency to consider such costs then.

“The finding by EPA that regulation of electrical utility industry emissions is appropriate was made many years ago and the practical effect of this decision, depending on how it comes out, could be a real setback for EPA’s regulation of coal-fired power plants and for cleaning them up,” Coplan said.

The Supreme Court heard oral arguments in the case on March 25.

GAO report finds little impact on environmental rules from deadline cases

A federal watchdog agency has found that citizen suits that aim to force the Environmental Protection Agency to meet deadlines specified by federal environmental laws not have much impact on the substance of regulations.

The conclusion debunks an argument advanced by some right-wing politicians, including Republican members of the U.S. House of Representatives, that the agencies are improperly collaborating with environmental advocates to reach lawsuit settlements. For example, a 2013 report by the House Committee on the Judiciary concluded that citizen suit settlements are frequently used “to bind executive discretion under judicial authority, including to bind executive discretion over successive administrations.”

That House committee report went on to hypothesize at length about the impact of so-called “sue and settle” cases, surmising that they cause the agency to inappropriately adjust regulatory priorities.

“In sue-and-settle litigation, defendant regulatory agencies, such as the U.S. Environmental Protection Agency, typically have failed to meet mandatory statutory deadlines for new regulations or allegedly have unreasonably delayed discretionary action,” the House  committee report said. “Political and practical concerns in sue-and-settle cases frequently give rise to perverse agency incentives to cooperate with actual or threatened litigation and negotiate a consent decree or settlement agreement to resolve it. This is because, once a decree or agreement is in place, the defendant agency has a litigation-based excuse to expedite action that helps to diminish political costs, reorder agency funding priorities, or serve other pro-regulatory ends.”

The cases studied by the Government Accountability Office for an audit report released last month do not support this claim.

GAO reviewed 32 “major” rules that EPA finalized between May 31, 2008 and June 1, 2013. Nine of them were issued by the agency after settlements of Clean Air Act lawsuits brought to enforce statutory deadlines.

“[N]one of the settlements we reviewed included terms that required EPA to take an otherwise discretionary action or prescribed a specific substantive outcome of the final rule,” GAO wrote in the report.

The report  explained that citizen suit settlements do not affect the substance of rules because a federal regulation that dates back more than 20 years prevents the government from agreeing to settlements that create mandatory duties. That regulation had its genesis in a procedure for approving settlements of lawsuits against government agencies instituted by Reagan administration attorney general Edwin Meese in 1986.

“[I]n general, this policy restricts [the Department of Justice] from entering into a settlement if it commits EPA to take an otherwise discretionary action, such as including specific substantive content in a final rule unless an exception to this restriction is granted by the [d]eputy [a]ttorney [g]eneral or [a]ssociate [a]ttorney [g]eneral of the United States,” the report said.

That limitation does not apply to consent decrees, which are essentially negotiated court orders approved by a federal judge.

Citizen suits are authorized by all seven of the nation’s principal anti-pollution laws.

 

Climatologist Mann’s libel case nears appeals court hearing

The libel case filed by renowned climatologist Michael E. Mann against a right-wing think tank, a politically conservative magazine, and authors who accused him in print of committing research fraud is nearing oral argument before a Washington, DC appeals court.

Mann is the lead author of a 1998 paper that examined average surface temperatures on Earth back to the year 1400. He and his co-authors, using statistical methods, concluded that the planet’s average surface temperature was hotter than it had been at any time since 1400 and that a rising concentration of carbon dioxide in the atmosphere is the culprit.

Mann and his colleagues graphed the pattern in the rising temperatures – a pattern that was later compared to the shaft and blade of a hockey stick.

This graph, showing changes in Earth’s average surface temperature since the year 1000 A.D., appeared in a 1999 paper published by climatologist Michael E. Mann and colleagues.

A 1999 paper by Mann and two other climate scientists extended the statistical reconstruction of past temperatures back to 1000 and pointed the finger of responsibility for rising CO2 emissions at humans.

Mann’s basic conclusions have since been confirmed in at least 28 subsequent papers by other scientists. A 2006 report by the National Academies of Sciences assessed the state of the science:

“The basic conclusion of Mann et al. (1998, 1999) . . . that the late 20th century warmth in the Northern Hemisphere was unprecedented during at least the last 1,000 years . . . has subsequently been supported by an array of evidence. . . Based on the analyses presented in the original papers by Mann et al. and this newer supporting evidence, the committee finds it plausible that the Northern Hemisphere was warmer during the last few decades of the 20th century than during any comparable period over the preceding millennium.”

The consensus that Mann and co-authors on the 1998 paper correctly identified the basic trend of the planet’s atmospheric warming has not dissuaded ideological opponents of the knowledge that anthropogenic causes of Earth’s climate change is occurring from attacking Mann.

Two papers that criticized Mann’s statistical methods followed. Both were rebutted by other scientists.

Then came a failed effort by two Republican congressmen to discredit his work through a George Mason University statistician later found to have committed plagiarism in the effort to do so and the theft of scientists’ email messages, which climate change skeptics used in an attempt to convince the public that Mann and other climatologists had somehow falsified data.

That accusation was debunked by each of six in a series of investigations. Two of them were conducted by the University of East Anglia, while a committee of the United Kingdom’s House of Commons, The Pennsylvania State University, the U.S. Environmental Protection Agency, the U.S. Department of Commerce’s inspector general, and the National Science Foundation also looked into the “Climate-gate” kerfuffle.

Nevertheless, climate change skeptics at the Competitive Enterprise Institute and National Review magazine turned to the blogosphere to accuse Mann of fraud and to compare him to a convicted child molester.

On July 13, 2012, Competitive Enterprise Institute blogger Rand Simberg wrote:

“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science.”

Simberg’s post was later edited to remove the reference to Sandusky.

Then, two days later, Mark Steyn wrote this in the pages of National Review:

“Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus. And, when the East Anglia emails came out, Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn State president forced to resign over Sandusky, was the same cove who investigated Mann. And, as with Sandusky and Paterno, the college declined to find one of its star names guilty of any wrongdoing. If an institution is prepared to cover up systemic statutory rape of minors, what won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he remains the Michael Mann of climate change, in part because his “investigation” by a deeply corrupt administration was a joke.”

Mann filed a libel lawsuit in October 2012.

Two different judges on the District of Columbia Superior Court refused to dismiss the case and the defendants appealed that decision to the local appeals court.

In his brief, which was filed on Sept. 3, Mann argues that there is not actually any dispute about the facts at the core of a successful defamation of character case.

“As in any defamation case, the issues are limited: were the statements true or false; did the defendants make a defamatory claim of fact concerning the plaintiff; and did the defendant act with the requisite degree of fault? Those are the essential questions in this case as well – and they do not involve a search for “scientific truth,” as Defendants claim.

“Here, there is no question that Defendants’ assertions were false, and Defendants do not even attempt to argue that their statements about Dr. Mann were true.”

Under a series of U.S. Supreme Court cases that have interpreted the Constitution’s First Amendment, civil liability for libel (the type of defamation Mann alleges) cannot be imposed unless a statement is false and, where a famous person is involved, the publisher knew or should have known it was false.

Thus, the major questions now before the District of Columbia Court of Appeals are whether accusations that a scientist committed research fraud is a statement that can be proven true or false and, if so and if it is a false statement, whether the Competitive Enterprise Institute, National Review, and/or Rand Simberg knew or should have known that statement was false when it was published.

Steyn is not participating in the appeal of the trial court’s decision not to dismiss Mann’s lawsuit, but the other defendants have argued that they merely expressed an opinion and that the statements were exaggerations.

The case is not yet set for oral argument. The defendants will have the chance to file reply briefs before the judges on the appellate court consider it. If Mann prevails in the District of Columbia Court of Appeals, the case will be returned to the lower court for a decision on its merits.

Supreme Court to decide whether to consider fight over revised ozone standard

 The U.S. Supreme Court returns to work next month and among the cases vying for the justices’ attention is a dispute over the George W. Bush administration’s decision to tighten limits on ozone emissions to the atmosphere.

The Environmental Protection Agency’s March 2008 change to the primary national ambient air quality standard for ozone lowered it by five parts per billion. The agency also set the secondary NAAQS at the same level as the primary NAAQS.

Opponents of that move, who include an industry advocacy organization called Utility Air Regulatory Group and the state of Mississippi, argue in their petition for certiorari that the Environmental Protection Agency set the new primary and secondary NAAQS at a level lower than necessary to protect public health.

Primary and secondary NAAQS for ozone, as well as certain other pollutants, are authorized by the Clean Air Act. A primary NAAQS aims to protect public health, while a secondary NAAQS is intended to advance public welfare.

Both NAAQS for ozone were challenged in the federal court of appeals in Washington, D.C.

The court held last year that EPA acted reasonably in making the change to the primary ozone NAAQS. The three appeals court judges, who ruled unanimously, summarized the scientific basis for the agency’s action:

Of particular relevance here, EPA emphasized new clinical studies, including human exposure studies, showing respiratory effects at ozone levels below 0.08 ppm. EPA also cited new epidemiological evidence suggesting associations between “serious morbidity outcomes” and ozone exposure at levels below 0.08 ppm, as well as risk assessments estimating the effects of various levels of ozone on the population.

The judges, who issued an unsigned opinion, ridiculed industry’s argument that EPA must presume a prior NAAQS to be valid, comparing that assertion to a “funhouse.”

The panel explained that a 2001 Supreme Court decision that requires EPA to set a “requisite” NAAQS, meaning one that is neither too onerous nor to lenient, also allows the agency to take into account scientific uncertainty.

Determining what is “requisite” to protect the “public health” with an “adequate” margin of safety may indeed require a contextual assessment of acceptable risk. Such is the nature of policy. But that does not mean the initial assessment is sacrosanct and remains the governing standard until every aspect of it is undermined. Every time EPA reviews a NAAQS, it (presumably) does so against contemporary policy judgments and the existing corpus of scientific knowledge. It would therefore make no sense to give prior NAAQS the sort of presumptive validity Mississippi insists upon.

Environmentalists, who argued along with a coalition of states, municipalities, and public health organizations that the ozone primary NAAQS was not stringent enough, fared no better before the appeals court judges. They asserted that EPA did not consider health impacts of a standard below 0.075 ppm and that the agency’s 2008 regulation did not include a necessary “margin of safety.”

The judges were not swayed.

EPA finds itself in a situation reminiscent of Goldilocks and the Three Bears. On one side, Mississippi argued that EPA is too stringent with its ozone NAAQS; on the other side, the governmental and environmental petitioners argue that the NAAQS is too lax. But unlike Goldilocks, this court cannot demand that EPA get things “just right.”

One study relied upon by the environmental advocates and their allies had been rejected by EPA on grounds that the sample size was too small; the court found this to be a reasonable decision. The panel similarly turned aside arguments that EPA should have placed more weight on epidemiological studies and that the agency did not act in a manner consist with internal risk assessments.

As for a margin of safety, the D.C. Circuit panel held that EPA has discretion to build that into the NAAQS itself.

The court did agree with arguments that EPA’s 2008 change to the ozone regulation established the secondary NAAQS at too high of a level.

The petition for certiorari pending before the Supreme Court will be granted if four of the nine justices agree to hear the case. The justices are likely to consider the petition at their Sept. 29 conference.

The case is Utility Air Regulatory Group v. Environmental Protection Agency, No. 13-1235.

Before the 2008 regulation, EPA had last changed the ozone NAAQS in 1997. That modification was also subjected to a multi-year litigation journey, being finally upheld by the U.S. Court of Appeals for the District of Columbia Circuit in 2002.

EPA must review NAAQS every five years. If justified by current scientific knowledge relating to public health and welfare impacts of emissions, the agency must change them accordingly.