In response to lawsuits brought by states and environmental groups, on October 29, 2021, the EPA filed a motion in the U.S. District Court of Appeals for the D.C. Circuit indicating it “will be reconsidering the 2020 Ozone NAAQS Decision, with the intention of completing the reconsideration by the end of 2023.”
Under the Trump administration, the decision was made to retain the previous National Ambient Air Quality Standards (NAAQS) for ozone set at 70 parts per billion by the Obama administration in 2015. The Trump administration decision was in response to periodic mandated reviews of these standards under the Clean Air Act (CAA).
Following that decision, a group of 12 state attorneys general—led by New York—filed suit in the D.C. Circuit for a judicial review of the decision. Groups such as Earthjustice, the Center for Biological Diversity, and the American Academy of Pediatrics filed similar petitions in February 2021.
“The most recent science clearly shows that the current ozone standards are simply not strong enough to protect public health, or the crops, forests, and ecosystems we depend on,” says Marvin Brown, a lead Earthjustice attorney on the case. “Reconsidering the standards is a good first step, and now we urge the Biden administration to strengthen these standards using the best available science and ensure robust community input throughout the process.”
Exposure to ozone over time causes lung damage. The American Lung Association’s 2021 “State of the Air” report says that “more than 40% of Americans—over 135 million people—are living in places with unhealthy levels of ozone or particle pollution. The burden of living with unhealthy air is not shared equally. People of color are over three times more likely to be breathing the most polluted air than white people.”
All these petitions contend that the Agency’s “Do Nothing” ozone rule violates its obligation to protect public health under the CAA.
In an Executive Order (EO 13990) issued on President Joseph Biden Jr’s. first day in office, the president indicated that the previous administration’s decisions to leave the current NAAQS in place would be reviewed.
“As with the reconsideration of the particulate matter [NAAQS], EPA will reconsider the decision to retain the ozone NAAQS in a manner that adheres to rigorous standards of scientific integrity and provides ample opportunities for public input and engagement,” states the EPA Ground-Level Ozone Pollution website. This action reflects the Agency’s renewed commitment to a rigorous NAAQS review process, with a focus on protecting scientific integrity. The EPA will ensure the Clean Air Scientific Advisory Committee (CASAC) is fully equipped to advise the administrator and will reinstall an ozone CASAC panel to provide targeted expertise and advice, as requested by the CASAC itself.
Activists and state attorneys general have expressed relief that the EPA will reconsider the standard but obviously hope the Agency will go on to strengthen the standards in the public’s best interest.