Court orders EPA to review Bush-era soot rule

updated 4:00 p.m. ET Feb. 24, 2009

WASHINGTON - A federal appeals court is pressing the Environmental Protection Agency for a better explanation of how the Bush administration's limit on the amount of soot and dust allowed in the air protects public health.

The court on Tuesday returned the standard to the EPA, arguing that the agency's explanation was inadequate. The decision in the long-standing controversy found soot limits by the Bush administration unjustified, and leaves it up to the Obama administration to set a new one.

More than a dozen states, along with environmental groups, sued the EPA seeking to lower the standard, arguing that the Bush administration ignored science and its own experts when it decided in 2006 not to lower the nearly decade-old annual standard.

The U.S. Court of Appeals for the District of Columbia ruled that the EPA failed to adequately explain, in view of the risks, why its standard is sufficient to protect public health. The court also found that the agency had acted unreasonably and contrary to the law when it set the secondary standard — aimed at protecting the public from haze — at the same level.

The appellate judges stopped short of vacating the current standards, saying that the defect in the agency's reasoning was curable and that even a flawed standard was better than none to protect public health.

"This is a real chance for the EPA to get it right, and to set standards that are truly based on the need to protect people's health," said Frank O'Donnell, president of the advocacy group Clean Air Watch.

The EPA said that it would review the decision to ensure that science and the law are followed.

Soot is comprised of microscopic particles released from smokestacks, wood-burning stoves and automobiles that contribute to haze and can burrow into lungs. Breathing in soot can cause lung and heart problems.

The court's decision is the latest in a series of legal opinions that have found problems with Bush administration air pollution policies.

Last year, an appeals court ruled that a Bush plan to control mercury pollution at the nation's coal-fired power plants violated the law by allowing utilities to purchase emission credits instead of actually reducing emissions. The Obama administration dropped the appeal of that case and said it is working on its own plan to curb mercury emissions.

In July 2007, the court threw out the Bush administration's Clean Air Interstate Rule, which required 28 mostly Eastern states to reduce smog-forming and soot-producing emissions that can travel long distances in the wind. The court has since reinstated the rule while the EPA makes court-mandated changes.

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