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News Analysis

The lawyers debated over ozone and soot, but the markets saw NOx as the "smoking gun."
Fortnightly Magazine - January 1 2001

confusion has surrounded the new standard and the old "one-hour standard." What exactly do the two terms mean? The concepts were not clear to at least one Supreme Court justice, who posed that very question in the oral arguments. Moreover, it took Solicitor General Seth Waxman, who argued the case for the EPA, a few interchanges with the justice before he could offer an answer.

U.S. Supreme Court: General Waxman, if we're permitted to ask unimportant questions, can I ask what eight hours we are talking about, in the eight-hour standard? Which eight hours of the day is it?

Waxman: You're referring to the ... standard that is set for ozone.

Court: Yes.

Waxman: And I don't think that the standard—

Court: Because eight hours is more reliable than one hour, but I'm wondering if, I just don't find—you tell me, which eight hours is it? Is it from midnight to 8 a.m., because—

Waxman: I believe it is—

Court: Because it would vary, I think, tremendously.

Waxman: I am certain that in either the criteria documents, the staff papers ... it specifies that in detail, but I'm afraid that I can't tell you the answer. ...

Court: I had assumed that it meant you couldn't go over those levels during [an] eight-hour period in the day.

Waxman: I believe that's right, but I am not a—I'm not even in the realm of being a scientist, and I would want to be more certain before I set it, but it's not just—

Court: Just a matter of averaging it over the eight hours rather than averaging it for one hour.

Waxman: It is, in fact, the three-year average of the annual fourth-highest daily eight-hour average, if that's clear.


At minimum, Durbin says that the impact of the ruling will reach across the spectrum of air quality regulation. "If the court upholds the D.C. Circuit ruling about nondelegation, that is going to throw every air quality standard that currently exists into question because they've all been established by that authorization, by that principle."

But, say attorneys representing the industry side, EPA was capricious in setting its standards, failing to show how it arrived at its numbers based on scientific evidence. "These standards are more stringent and, interestingly, when you look at the record, it's not clear that they're going to result in any significant improvement in public health protection," says F. William Brownell, the attorney at Washington, D.C. law firm Hunton & Williams who is representing Appalachian Power and American Public Power Association in the case.

According to the industry side, the EPA lacks any scientific evidence suggesting that the collective public health would benefit from the more rigorous standards. "The utilities and others were concerned about having much more strict standards that would cost much more to implement but would not improve the level of public protection ...," explains Brownell.

How did the questioning go from the perspective of each side in the cases?

"Our legal position is the superior position. The oral argument, I thought, went very well," says Durbin,