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Brief for Challenge to Ozone Standard

The U.S. Court of Appeals for the D.C. Circuit will soon hear arguments in Murray Energy Corp. v. U.S. E.P.A., challenging the EPA’s revised ozone National Ambient Air Quality Standards (NAAQS). Policy Integrity has submitted an amicus brief in support of the EPA for this case.

The case focuses on whether the EPA is justified in setting a new ozone standard of 70 parts per billion (ppb). Petitioners call the costs of compliance overly burdensome, and claim that sources beyond states’ control could make it impossible to meet the new standards. Policy Integrity’s brief argues that objections to the 70 ppb ozone standard on cost-benefit analysis grounds are meritless, and that if the EPA did consider costs and benefits in setting the new NAAQS standard, the agency would in fact have chosen a more stringent standard.

The EPA is not permitted to consider the costs of implementation in setting new NAAQS, as decided in Whitman v. American Trucking. However, estimates of costs and benefits were prepared when the agency considered where to set the revised standards. These estimates demonstrate that a more stringent standard of 65 ppb would in fact generate even greater net benefits for society than the chosen 70 ppb standard (Michael Livermore and Richard Revesz discussed this issue in a 2015 op-ed). Compliance costs for the 70 ppb standard set by the EPA in 2015, are estimated to be $1.4 billion annually as of 2025 for all states other than California. Annual benefits are estimated at $2.9 to $5.9 billion. The EPA used peer-reviewed economic methods for quantifying and monetizing the benefits, and has used these methods for decades. For these and other reasons, our brief argues that the D.C. Circuit court should uphold the new ozone standard.