- The Washington Times - Sunday, February 6, 2005

After more than four years of stalling by the Environmental Protection Agency, a federal appellate court just might finally consider whether the agency used junk science to force both gas prices and smog levels higher.

I say “just might” because it looks like the court is about to sweep the matter under the rug in EPA’s favor.

On Feb. 14, the U.S. Court of Appeals for the District of Columbia is to hear arguments in National Alternative Fuels Association (NAFA) vs. EPA. The lawsuit centers on EPA rules issued in 2000 mandating lower urban ground-level ozone by reducing the sulfur in gasoline — the “Tier 2 standards.”

By way of background, the Clean Air Act Amendments of 1990 directed EPA to issue regulations reducing emissions from motor vehicles, including those contributing to ozone, such as volatile organic hydrocarbons (VOCs) and nitrogen oxide (NOx). These standards resulted in reformulated gasoline, which has been in the market for some time.

The law also directed the EPA to study whether further emission reductions would be required after the reformulated gasoline rules were put into effect. This study was then used by EPA to justify issuing the “Tier 2” standards. Here’s where the controversy begins.

EPA claimed that, unless low-sulfur gasoline was mandated nationwide, the emissions reduction under the Tier 2 rules might be nullified — citing automakers’ dubious concerns that conventional gasoline might harm the new emissions-control equipment required by the rules. This claim was tested and validated in its study, according to EPA.

According to NAFA’s lawsuit, however, a report done for NAFA by a leading independent emissions-testing laboratory indicates EPA rigged the test to achieve a preordained result.

“It was concluded that [the] methodology used by EPA was faulty and that the data used did not support the conclusion that emissions from Tier 2 vehicles [caused harm to emissions equipment] … Emissions data from only four vehicles were used … an SUV, a pickup and two minivans. … The SUV [vehicle] emissions were weighted to represent two-thirds of the final estimate … ,” the laboratory concluded.

Adding insult to injury, EPA’s tests were then introduced into the public rulemaking record after it was too late for public comment, the NAFA lawsuit maintains.

Four years later, the public may be paying both in higher gasoline costs and more pollution because of EPA’s actions.

When asked about rising gas prices in an August 2004 interview on National Public Radio, economist Philip Verleger of the Institute for International Economics attributed the 50-cent increase between March and July on the EPA’s low-sulfur regulations and limitations on gasoline refinery capacity. NAFA estimates the low-sulfur rules cost in the 20- to 25-cent range.

But the ultimate irony — as noted by the Competitive Enterprise Institute’s Kay Jones in 1999, using EPA’s own data — is the agency’s Tier 2 rules may actually worsen air pollution.

Although EPA characterizes NOx as a precursor to ozone, NOx reductions can actually increase or decrease ozone concentrations depending on the locations and emission rates of NOx and other air pollutants, says Mr. Jones. He cited work by the National Academy of Sciences.

“Smog in many urban areas increases when NOx concentrations are further reduced, while declines generally occur in less heavily populated downwind areas,” says Mr. Jones. His prediction has come true, say some leading atmospheric scientists — NOx reductions may, in fact, be increasing urban ozone levels around the country.

You would think a federal court would be eager to get involved where a federal agency may have used faulty scientific testing, increasing consumer costs and pollution. Yet the D.C. Court of Appeals seems on the verge of letting EPA get away with it.

After allowing EPA to stall the case for four years, the court granted EPA’s objection to a NAFA request for a 30-day extension of the filing of its opening brief. Such extensions are routine and almost always granted.

NAFA filed a hastily prepared opening brief on time, followed by a more completed amended opening brief 30 days later. Without a showing of any harm done, the EPA objected to NAFA’s amended brief and the court granted EPA’s request summarily — that is, without explanation.

EPA answered NAFA’s opening brief and, although NAFA replied, the EPA subsequently filed a motion to reject NAFA’s reply based on legal technicalities. The court granted EPA’s motion, denying NAFA the opportunity to address the technicalities, which almost any court would allow. The court provided no explanation or reasoning for this unusual move.

This week, NAFA filed with the court an emergency request for reconsideration and a reply brief curing all the EPA technical objections. If not granted, the Feb. 14 hearing is likely to be short and sweet — in favor of EPA, but against the rest of us.

Steven Milloy publishes JunkScience.com and CSRwatch.com, is adjunct scholar at the Cato Institute and the author of “Junk Science Judo: Self-defense Against Health Scares and Scams.” (Cato Institute, 2001.)

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