On Tuesday, the D.C. Circuit decided American Petroleum Institute (API) v. EPA, an interesting case dealing with nitrogen oxide (NO2) levels.  The standard is supposed to include a margin of safety.Under the Clean Air Act, EPA sets National Ambient Air Quality Standards (NAAQS) for airborne substances that endanger human health or welfare.  EPA set such a standard for NO2 in 1971 and finally got around to revising the standard in 2010.

The innovation in the new NO2 standard is that it’s a one-hour standard covering peak exposures, and all air monitors in an area must hit the standard. The previous standard was an annual average, so local, temporary peaks could be quite a bit higher. The evidence showed that the earlier average standard did not protect people against respiratory problems from spikes in nitric oxides, particularly if they were near freeways.

Two industry groups sued to overturn the new standard, but it was unanimously upheld by a panel containing two very conservative judges and one more liberal one.  The court was distinctly unimpressed by the industry claims.  In response to a claim that EPA violated its own rules because it relied on a study that wasn’t peer-reviewed, the court ...

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