States, activists sue EPA over new smog rules

updated 11:31 a.m. ET May 28, 2008

WASHINGTON - Eleven states on Tuesday sued the Environmental Protection Agency in an effort to overturn what Connecticut Attorney General Richard Blumenthal called weak ozone standards.

Health and environmental organizations filed a parallel lawsuit arguing that the Bush administration failed to protect public health and the environment when it issued those new smog requirements.

The states were Connecticut, California, Delaware, Illinois, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New York and Rhode Island. Other plaintiffs were the District of Columbia, the city of New York and Pennsylvania's department of environmental protection.

The EPA in March issued tougher health standards for ozone, commonly known as smog, requiring that airborne concentrations be lowered from a maximum 84 parts per billion to 75 parts per billion.

But an EPA science advisory board — and most health experts — had recommended a limit of 60 to 70 parts per billion to adequately protect the elderly, people with respiratory problems and children.

The EPA also did not go as far as the science panel had recommended in setting a separate standard to protect the environment, especially plants, forests and wildlife, from smog. The EPA lowered the standard equal to the primary standard safeguarding public health, but it rejected a more beneficial "seasonal standard" urged by conservationists.

EPA and White House officials have acknowledged that the seasonal standard had been opposed by the White House Office of Management and Budget, which oversees government regulation. The issue was settled after President Bush intervened directly on behalf of the White House staff only hours before the rule was announced.

The activists' suit was filed in the U.S. Court of Appeals for the District of Columbia Circuit by Earthjustice on behalf of a number of environmental and conservation groups and the American Lung Association.

David Baron, an attorney for Earthjustice, said the Clean Air Act "requires EPA to adopt standards strong enough to protect our lungs and our environment" and that the EPA standard fails to do so.

"The EPA's decision to disregard the overwhelming evidence and the advice of respected experts is a decision that we cannot allow go unchallenged," said Bernadette Toomey, president of the American Lung Association.

Other health and environmental organizations involved in the lawsuit were the Natural Resources Defense Council, Environmental Defense Fund, National Parks and Conservation Association and the Appalachian Mountain Club.

Johnson, appearing last week at a House hearing, defended his decision, calling the new rules the most protective smog requirements ever issued by the agency and significantly tougher than the standard they replaced, which was issued in 1997.

Johnson has said that he took into account recommendations by the advisory panel of scientists, but simply disagreed with them. The business community had been lobbying hard to keep the old smog standard of 84 parts per billion.

This is only the latest of a number of recent high-profile lawsuits against the EPA in connection with air pollution and climate-related rules.

Environmentalists and a number of states also have challenged in court the EPA's refusal to allow California to limit greenhouse gas emissions from cars; its rules regulating mercury from power plants; and its drawn-out deliberations over whether to regulate carbon dioxide under the Clean Air Act.

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