DC Court of Appeals Invalidated Major Sections of U.S. EPA Ozone Standard

On December 22, 2006, the Court of Appeals for the District of Columbia invalidated major sections of U.S. EPA’s 2004 rule governing the transition from a 1-hour to an 8-hour ozone standard. In particular, the Court held that the anti-backsliding provisions of Section 172(e) apply and that traditional ozone non-attainment programs (such as new source review, rate of progress milestones, transportation and contingency plans) all are controls that are required to remain in place. The Court’s decision will likely result in a significant change in the regulation of ozone precursors in ozone nonattainment areas and may put back in place many of the burdensome restrictions imposed under the 1990 Amendments to the Clean Air Act.

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