[co-author: Shawn Whites, Paralegal]
On May 9, 2018, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a memorandum outlining a “back-to-basics” process for reviewing National Ambient Air Quality Standards (NAAQS) for criteria pollutants—carbon monoxide, lead, ground-level ozone, nitrogen dioxide, particulate matter and sulfur dioxide—under the Clean Air Act (CAA). “Consistent with [EPA’s] commitment to cooperative federalism,” the memo establishes five principles to guide future NAAQS reviews, with the laudable goal of complying with the five-year statutory deadline for review.
Unsurprisingly, Pruitt’s guidance continues the pattern of rolling back existing regulations by limiting the use of science and public health research and raising new perspectives on potential economic consequences. However, the inclusion of potential economic consequences during EPA’s future reviews would likely violate Supreme Court precedent established in Whitman v. American Trucking Ass’ns, Inc.,1 which held that the CAA bars EPA from considering costs “indirectly related to public health” in setting NAAQS(i.e., costs that have the “potential for canceling the conclusions drawn from direct health effects.”)2
The memo directs EPA staff to begin its review of the ozone NAAQS, with any necessary revisions finalized by October 2020, and plans a complete review of the particulate matter NAAQS by December 2020.3 As with other measures taken in the name of regulatory reform, litigation seems inevitable.
1 531 U.S. 457 (2001).
2 Id. at 469.
3 EPA Press Release, “Administrator Pruitt Signs Memo to Reform the National Ambient Air Quality Standards Review Process” (May 10, 2018), https://www.epa.gov/newsreleases/administrator-pruitt-signs-memo-reform-national-ambient-air-quality-standards-review.
