Industry Group Loses Challenge to Nitrogen Dioxide Rules

The first new U.S. standard for nitrogen dioxide in at least 35 years was upheld by a federal appeals court, which said the Environmental Protection Agency had the authority to attempt to improve air quality around the nation’s busiest roadways.

A three-judge panel of the U.S. Court of Appeals in Washington today threw out a challenge by the American Petroleum Institute to regulations restricting the peak amount of nitrogen dioxide, or NO2, from tailpipes and smokestacks that can be present in the air during a one-hour period. Levels of the toxic gas are limited to a one-hour standard of 100 parts per billion.

“Because the record adequately supports the EPA’s conclusion that material negative effects result from ambient air concentrations as low as the 100 ppb level, we cannot conclude that the agency was arbitrary and capricious” in adopting that standard, U.S. Circuit Judge Douglas Ginsburg wrote for the court.

Nitrogen dioxide, a contributor to smog, has been tied to respiratory problems, especially in people with asthma, according to the EPA. There had been no one-hour rule for nitrogen dioxide, unlike the time-based restrictions on carbon monoxide and ozone.

When drafting the rule in 2010, the EPA said it was establishing monitoring requirements in urban areas that will measure nitrogen dioxide levels around major roads. The monitors must be located near roadways in cities with at least 500,000 people, and cities with at least 1 million residents must have community-wide monitoring, the agency said.

More Stringent

The American Petroleum Institute argued that the rules are more stringent than necessary to protect the public’s health. The Washington-based API, which represents more than 500 oil and gas companies, said in an e-mail that it is reviewing the ruling.

“EPA relied on unpublished, non-peer-reviewed scientific studies to set the new standard and outright ignored published scientific studies that questioned the agency’s conclusions,” Howard Feldman, API director of regulatory and scientific policy, said in an e-mailed statement.

The case is American Petroleum Institute v. Environmental Protection Agency, 10-1079, U.S. Court of Appeals for the District of Columbia (Washington).

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