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Federal Court Strikes Down EPA 2004 Ozone Rule

In a unanimous decision, a federal court of appeals has struck down the Environmental Protection Agency’s ruling changing the 8-hour ozone standard, saying that the EPA violated the Clean Air Act by relaxing those limits.

Challenging the ruling in the DC Circuit Court of Appeals were the California South Coast Air Quality Management District; the Clean Air Task Force (on behalf of the Conservation Law Foundation and Southern Alliance for Clean Energy); Louisiana Environmental Network; a coalition of states including Massachusetts, Delaware, Maine, New York, Pennsylvania, and the District of Columbia; the American Lung Association; Environmental Defense; Sierra Club; and Natural Resources Defense Council. Earthjustice argued the case for the petitioners.

Earthjustice argued that EPA’s action made no sense because it came after the agency found that the previous ozone standard was too weak to protect public health. Cities that were at risk for increased pollution under EPA’s action included Chicago, Houston, Milwaukee, New York, Atlanta, Baltimore, Baton Rouge, Philadelphia, Sacramento, Washington (DC), Beaumont-Port Arthur, Boston, Dallas, Providence, and San Joaquin Valley, CA, among others.

The 1990 Clean Air Act required stronger anti-smog measures in cities violating ozone standards, including limits on pollution from new and expanded factories, requirements for annual cuts in smog-forming emissions, and caps on truck and car exhaust. In 1997, EPA found that the then-existing 1-hour ozone health standard wasn’t strong enough to protect health, and adopted a new 8-hour standard to provide greater protection.

But in 2004, the agency adopted rules that weakened pollution control requirements for areas violating both the old and the new standard. That triggered the court challenge leading to the present decision.

The Court also rejected EPA’s decision to exempt many cities violating the new standard from the law’s most protective requirements. EPA argued that it should have discretion to apply weaker protections to these areas, but the Court held that Congress—frustrated with past failures to meet standards—required a stronger approach.

We therefore hold that the 2004 Rule violates the [Clean Air] Act insofar as it subjects areas with eight-hour ozone in excess of 0.09 ppm to Subpart 1. We further hold that EPA’s interpretation of the Act in a manner to maximize its own discretion is unreasonable because the clear intent of Congress in enacting the 1990 Amendments was to the contrary.

Because EPA has failed to heed the restrictions on its discretion set forth in the Act, we grant the petitions in part, vacate the rule, and remand the matter to EPA for further proceedings.

—Circuit Judge Rodgers, writing the opinion for the court

Ozone is associated with asthma attacks, coughing, wheezing, and other respiratory illness. Higher smog levels in a region are frequently accompanied by increased hospitalization and emergency room visits for respiratory disorders. Hundreds of counties across the country currently have unhealthful levels of smog, which limits outdoor activities, increases hospitalizations, and puts millions of Americans at risk for respiratory problems.



tom deplume

Personally, as an asthmatic, I would like to see a class action suit against the fossil fuel industry for all the injuries and deaths their products have caused. Their products poison the air but they have far too long externalized this cost. They have actively worked to prevent alternatives to fossil fuels from being implemented. The only way to clean the air is to electrify surface transportation and use nuclear and renewables to generate that electricity.

FYI co2

This federal court action sets good precadent towards the cause for clean air!


Catch 22 if the oil industry handnt existed most of you wouldnt exist.


No chances to relaxed NOx emission standards to promote diesel cars in US, apparently.



Sorry to hear about your asthma.

As I know, gas-fired power plants are incredibly clean, and last 20 years milty-thrillion dollar investments in clean coal-powered power plants made their air-quality emissions quite low. Certainly, it was not the case 30 years ago, when you probably got most of the damaging exposure.

However, it is indoor air quality, which is considered to be more damaging to health than outdoor. The main contributors for poor indoor air quality are our shitty carpeting and mold-infested building structures. Also I strongly suspect that terrible overuse of drugs, especially hormone-altering ones contributed to incredible high level of asthma in US/Canada.

What can I say? Relocate to place with clean air, live in low-dust house, and drive car with good filtering system. You probably do it already.

FYI co2

It's not a "catch 22". If the EPA is effective in regulating and enforcing regulations with big oil/coal for a cleaner environment, more people can enjoy a better quality of life. Merry Christmas from Chicago (lukewarm 50F today)

Harvey D.


Fine particles (PM 2.5 and PM 10) + toxic gases from a few million poorly designed wood burning stoves and fire places is a major nuisance for people with asthma in our part of the world. It is difficult to run away from them because they are used everywhere on cool and cold days. Over 50% of the homes are equipped with those (most bad) wood burning machines. Population concentration in towns and cities make it worse.

On cold weekends, many asthmastic people have to lock themselves up inside because the wood burning fans are at it strongly. We have and air circulation machine with heat recovery (83%)+ double filtering. It helps. We use clean elctricity for heating + a natural gas fire place for emergencies. We did away with the wood burning fire place 25 years ago.

One wood burning fire place emits more PM in 9 hours than a recent diesel car during 18 000 Km. It can be much worst when people burn poor wood or just about anything in their stoves/fire places.

It's a real shame, specially in an area where clean hydro-electricity is the cheapest energy for heating and available everywhere. Most people do not realize that they are affecting their neighbours with asthma, and if they do, many couldn't care less.

Egocentricity has destroyed the diminished level of altruism left in most people.

Merry Xmas.


I read that diesel trains put out as much pollution as 120 coal fired power plants in the U.S. That and all the diesel trucks that used to burn 500 ppm diesel and you have quite a brew. I am glad Clinton and Gore worked so hard to get low sulfur diesel, in spite of all the resistance to it. Too bad it took 7 years.


Life expectancy in the last century saw an amazing surge.The ability to heat our homes and to provide mass amounts of shelf stable food products were big contributors to the rise.
As with our miracle medicines we have come to learn of a list of side effects [asthma,obesity,cancer etc.]that these advances also brought us.Trans fats helped fill shelves with longer lasting foods and gave us high cholesterol.Heat and power advances gave us pollution leading to more lung cancer.
Should we hope to die at forty to avoid the majority of these side effects? I prefer to hope for nanotech age to repair many of these probs.Then fret of nt probs.

tom deplume

I have recently moved to a small rural town in Iowa and I have found the outdoor air to be much less irritating.
Wood burning does occur here not only in stoves and fireplaces but also in brushpiles. The brush pile fires have unrestricted access to air which means more complete conversion to CO2 and H2O. Stoves and fireplaces usually restrict air flow which generates all manner of irritating substances.
The problem with the coal burning utilities is the age of the powerplants. A grandfather provision exempts these old coal burners from cleaning up their act. The utilities perpetually battle any requirement to retrofit these old powerplants. They are aware of the harm they are causing, know how to correct the problem, and have long had the means to do so. Woodburners are unlikely to be aware of how to clean up their emissions and may lack the means to do so.


No actauly the power plant owners would LOVE to retrofit and improve thier plantds... in stages they can actauly manage to pay for. But asshats made it so they have to do it all at once and no power plant operator can afford the bill so none can upgrade.

You are litteraly taking about a plant that makes maybe 2 mil a year profit being forced to pay 250 million in upgrade costs so that they can maybe make 2.2 million a year.... a payback time about 40x the expected life of the plant.


I am not sure that is true. The ruling states now that they can expand up to 20% of the plants value without any upgrades. That just means that they can produce more pollution using old techology, it does not say that they will improve their plants. Where is the money in improving to produce less pollution? They want to expand to make more money.


In Louisiana, we are one of the few states that carries the Lion's share of chemical plants, gas & oil...etc... plus we're no better about fuel efficient cars (maybe worse than many)... so I don't care if you're worried about asthma, preagnant, or just someone who likes clean air:

For-profit entities will always choose the path of least expense. Until it is cheaper to clean up than to emit toxins, you'll end up with with crap in your air (in this case the low-level ozone problem we've been saddled with for as long as I've been knowing what low-level ozone is). You have to regulate and you have to think of how to make it financially viable.

Rolland Hughes

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