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E.P.A. Is Told to Reconsider Its Standards on Pollutants

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E.P.A. Is Told to Reconsider Its Standards on Pollutants


Bush administration standards for pollutants like soot are “contrary to law and unsupported by adequately reasoned decisionmaking,” a federal appeals court said Tuesday.

The court ordered the Environmental Protection Agency to reconsider its standards for the pollutants, fine particulates, which are linked to premature death from lung cancer and heart disease and to other health problems including asthma.

When the agency embraced the standards in 2006, its own scientific staff rejected them as too lax. In Tuesday’s ruling, the United States Court of Appeals for the District of Columbia Circuit said the agency “did not adequately explain” why the standards were adequate.

The decision is “a victory for the breathing public,” said Paul Cort, a lawyer with Earthjustice, who argued the case for environmental groups. The legal effort was joined by health organizations and more than a dozen states, including Connecticut, New Jersey and New York.

In a statement, the E.P.A. said only that the standards for particulate matter are “extremely important” and that the Obama administration would review the matter “to ensure that the science and the law will be properly followed.”

Researchers have drawn direct and immediate links between ambient levels of fine particulates and hospital admissions and deaths. By some estimates, tens of thousands of Americans die each year from exposure to airborne particulates.

Among other sources, fine particulates come from diesel engines, power plants, certain industrial processes and even fireplaces. Perhaps one-thirtieth the diameter of a human hair, they can make their way deep into the lungs and in some cases even into the bloodstream.

These pollutants are regulated under the Clean Air Act, but there is no generally agreed safe level of exposure. So in some ways, setting standards is a value judgment more than a scientific decision.

In 2006, agency scientists and almost all the members of its Clean Air Scientific Advisory Council recommended that the standard for long-term exposure be lowered to 12 to 14 micrograms per cubic meter of air, from 15. But the agency’s administrator at the time, Stephen L. Johnson, said there was “insufficient evidence” linking the particulates to health effects.

In a statement in response to Tuesday’s decision, State Attorney General Andrew M. Cuomo of New York said it “could result in preventing hundreds of premature deaths just in the New York City area annually.”

It could also save “hundreds of millions of dollars” in health care costs, Mr. Cuomo said.

Ambient levels of fine particulates vary by place, season and weather. The Clean Air Act divides the nation into so-called airsheds, and regions that consistently violate air-quality standards are subject to penalties including, ultimately, the withdrawal of federal highway funds, Mr. Cort said.

The case decided on Tuesday also involved coarse particulates, like dust, and particulate contributions to haze. Agricultural groups had challenged the standards for coarse particulates as unnecessarily stringent, but the court rejected their view. And it said the E.P.A. must act to reduce the role of particulates in haze.

It was the second time in two days that the appeals court was in the news for overturning decisions made by the E.P.A. during the Bush administration. On Monday, the Supreme Court refused to consider a challenge to the lower court’s ruling against Bush-era standards on emissions of mercury and other pollutants from coal-fired power plants.

Mr. Cort said the appeals court had in recent years exhibited “an increasing level of distrust” for Bush administration regulations. But he rejected the idea that its recent decisions amounted to law-making.

“This was not an activist panel of judges here,” Mr. Cort said. Two of the three were Republican appointees, he said, “and this was a per curiam opinion, meaning unanimous.”

February 25, 2009

Justices Hear Cases on Paying for Superfund Cleanups


WASHINGTON — The Supreme Court heard arguments on Tuesday about who should pay for the often enormous costs of environmental cleanups under the federal Superfund law.

There was apparent consensus on the court on only one point, expressed by Justice Ruth Bader Ginsburg. “The party who shouldn’t be left holding the bag,” she said, “is the public, the innocent victims of the pollution.”

But the court seemed divided over the two central questions in the consolidated cases it heard on Tuesday: Can the seller of a commercial product be held liable for spills that were a likely result of how its customer handled deliveries? And can minor contributors to environmental contamination be made to pay for all of the cleanup costs?

Justice Stephen G. Breyer suggested that the government might have overreached on the first point when it sought to hold the Shell Oil Company responsible for selling pesticides to a chemical distribution business in Arvin, Calif., where they routinely leaked and spilled.

How would that differ, Justice Breyer asked, from holding Hewlett-Packard responsible for harm caused by the printer cartridges that its customers dispose of improperly?

Malcolm L. Stewart, a lawyer for the government, said Shell’s conduct was different because it made the shipping arrangements and knew spills occurred with every shipment.

Kathleen M. Sullivan, a lawyer for Shell, said the Superfund law, which applies to, among others, companies that “arranged for disposal” of hazardous waste, should not be read to impose “potentially crippling liability” on the sellers of useful products “with only the most attenuated connection to the harm.”

Justice Ginsburg acknowledged that the Superfund law, known formally as the Comprehensive Environmental Response, Compensation and Liability Act, “can be a punishing statute.” But she said she feared that potentially responsible companies would simply write shipping contracts so that “the moment the product reaches a destination there’s no continuing responsibility on the part of the seller.”

The second question in the cases, Burlington Northern and Santa Fe Railway Company v. United States, No. 07-1601, and Shell Oil Company v. United States, No. 07-1607, often arises when the main wrongdoer is insolvent.

A federal trial judge in California ruled that Shell should pay 6 percent of the cleanup costs and that a railroad company that owned part of the contaminated site should pay 9 percent. The United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the decision, making the two companies responsible for almost all of the costs. The chemical distributor in the case, Brown & Bryant, has gone out of business.

Maureen E. Mahoney, representing the railroad company, said ordinary legal principles should apply in the Superfund context. “Are all of the damages attributable to the harm that was caused by the defendant?” she asked. “If they’re not, then apportionment is appropriate.”

Domestic Violence

The court issued a decision on Tuesday upholding a broad interpretation of a federal law that makes it a crime for people convicted of misdemeanors in domestic violence cases to possess guns.

“Firearms and domestic strife are a potentially deadly combination nationwide,” Justice Ginsburg wrote for the seven-justice majority.

A West Virginia man, Randy E. Hayes, was indicted under the law for possessing a rifle in 2004 despite a 1994 misdemeanor conviction for battery. The question in the case was whether that conviction, under a general state law rather than one specifically aimed at domestic violence, was sufficient to make him subject to the federal gun law.

There was no dispute that the victim of the battery was Mr. Hayes’s wife at the time. Justice Ginsburg said that fact should govern the matter. While federal prosecutors pursuing charges under the gun law must prove that the violence in question was domestic, she said, it does not matter whether the original criminal conviction was under a law focused on such violence.

Chief Justice John G. Roberts Jr., joined by Justice Antonin Scalia, dissented in the case, United States v. Hayes, No. 07-608. The federal law is ambiguous, Chief Justice Roberts said, and ambiguities should be construed to favor criminal defendants. “Ten years in jail,” he wrote, “is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.”

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