June 13, 2012

Setting Secondary NAAQS to Protect the Environment

The Clean Air Act (CAA) requires EPA to set National Ambient Air Quality Standards (NAAQS) for pollutants harmful to human health and the environment. Primary standards provide public health protection. Secondary standards provide public welfare protection, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings. EPA has recently issued two secondary NAAQS, which many are calling into question.

In March EPA released a final rule, which maintains human health-based standards for emission of nitrogen and sulfur oxides, while acknowledging that it does not adequately protect the environment from acid rain. EPA said it does not have enough information to develop a standard to protect the environment from acid deposition, but environmental groups, who have decried the final rule as "grossly illegal," argue that an EPA policy assessment recommending revisions to the secondary standards provides the data EPA needs to regulate for ecological health.

In April the U.S. Court of Appeals for the District of Columbia Circuit received briefs in a consolidated case challenging the 2008 NAAQS for ozone, in which EPA set secondary standards identical to primary standards. Environmental groups and states challenging the rule argue that these standards are contrary to recommendations of EPA staff and various science committees to set secondary standards to account for seasonal ozone fluctuations.

What is the procedure for setting secondary NAAQS and what information is EPA obligated to examine during this process? What is the role of the Clean Air Scientific Advisory Committee in providing data? What are the likely results when EPA acknowledges that the standard it has set does not provide the protection it is required to provide? Our expert panel discussed these and other issues relating to the setting of secondary NAAQS.

Panelists:
Adam M. Kushner, Partner, Hogan Lovells (moderator)
David Baron, Managing Attorney, Earthjustice
Aaron Flynn, Associate, Hunton & Williams

Materials:
Presentation slides.
Members click here to access the event recording