The Arizona Chamber of Commerce will argue in court today against an EPA regulation that seriously threatens Arizona’s industry. The case, entitled Kentucky v. U.S. EPA, will be heard in the D.C. Circuit Court of Appeals and concerns the EPA’s regulation of particulate matter. The chamber is part of a coalition of 10 industry groups, plus Arizona House Speaker Ben Thoma and Arizona Senate President Warren Petersen. Additionally, Kentucky leads a group of 25 states that are challenging parallel regulations. Although the coalitions have presented slightly different arguments to the court, all challengers agree that the EPA exceeded its authority in issuing the new regulations.
Fine particulate matter, also known as “PM 2.5,” consists of particles that are 2.5 micrometers or smaller in diameter. The Clean Air Act gives the EPA the authority to regulate PM 2.5, but in an unprecedented move, the EPA has already set one of the lowest standards in the world without going through the statutory process required by the act. The existing standards have been lowered by 25%. The new standards will likely impose onerous permitting processes and costly administrative measures on industries in three Arizona counties.
Despite little evidence that Arizonans can meaningfully reduce PM 2.5 levels, Maricopa, Pinal, and Santa Cruz counties are all at risk of exceeding the new PM 2.5 standards unless restrictions are lifted. There is. For example, in Maricopa and Pinal counties, the largest source of PM 2.5 is wildfires, which occur primarily on federal lands. Arizona’s climate and geography also increase PM 2.5 levels, regardless of human actions. And there is little or conflicting evidence that lowering standards leads to meaningful improvements in public health.
The revised standards are not just bad policy. It’s illegal. The Clean Air Act creates a very specific legal process in setting national standards for PM 2.5 (and other pollutants). The EPA is required to conduct a “thorough review” of air quality standards and set new national standards at least every five years. EPA last did this in 2020 and decided the standards would remain unchanged from the 2015 standards.
The 2020 review was consistent with the Clean Air Act’s requirement for a “thorough” review. In deciding not to lower the standards, EPA explained that scientific evidence since 2015 does not question the standards and that there is considerable uncertainty as to whether lowering the standards would improve public health. did. EPA emphasized that epidemiological studies are too vague to support lowering standards.
Nevertheless, a year later, in 2021, the EPA inexplicably announced that it would “reconsider” its 2020 decision. This review culminated in lower PM 2.5 standards, which took effect in March of this year. In doing so, EPA took the radical position that cost, achievability, and technical feasibility could not be considered. It also admitted that it had only “partially restarted” the review without conducting the necessary “thorough review”.
Such maneuvering is illegal, and the Chamber expects courts to review the EPA’s decision.
Nate Curtici is an attorney with the Arizona Chamber of Commerce.
