The D.C. Circuit handed down an opinion in Sierra Club v. EPA last month that tossed the Sierra Club’s challenge of a U.S. Environmental Protection Agency (EPA) rule from the Obama Administration. The result may be greater flexibility and reduced public oversight in state ambient air quality monitoring.

The ruling upholds the EPA’s policy of largely deferring to states to establish and control air monitoring networks, limiting the ability of NGOs like Sierra Club to challenge those decisions under the federal law. Notably, the court also expressed its skepticism that a mere decrease in the frequency of air monitoring would necessarily result in public harm.

In its complaint, the Sierra Club challenged three aspects of the rule:

1. the rule removed the ability to federally challenge air monitoring plans by allowing the EPA to approve changes to state air monitoring plans without notice and comment rulemaking;

2. the rule gave EPA regional administrators the authority to reduce the frequency of state PM2.5 monitoring upon request; and

3. the rule reduced the reliability of ambient air quality monitoring by eliminating certain quality assurance requirements for ambient monitoring in areas that are attaining the NAAQS.

The three-judge panel at the D.C. Circuit unanimously rejected these arguments on procedural grounds by finding that the EPA approach being challenged by the Sierra Club had been in place since 2006 – meaning that the window to challenge it had long since passed. The court also found that the Sierra Club had not shown that its members would actually be harmed by changes in the frequency of air sampling, and therefore, the organization lacked standing to pursue its claim in the first place.

The Sierra Club had to demonstrate, not merely allege, that there is a “substantial probability” that one of its members will suffer an injury if the court does not take action, i.e., prevent the EPA from allowing regional administrators to consider reductions in sampling frequency. As the court points outs:

For a Sierra Club member to face an increased risk of harm, the following conditions would have to be fulfilled. (1) A state must request a reduction in sampling frequency; (2) the request must concern a monitor near one of Sierra Club’s members; (3) the request must be approved by the Regional Administrator; (4) there must be a likelihood that a spike in PM2.5 levels near that monitor will occur at a time when the monitor would have been sampling but for the approved reduction; (5) and conditions must be such that no nearby monitor would pick up the spike.

In its attempt to meet these five conditions, Sierra Club identified three different monitors that are (1) eligible for a reduction in sampling, and (2) placed near a Sierra Club member. The court was unpersuaded by these examples, however, as it found the eligible monitors were at rather low-risk sites and that all other events that would have to occur were far too theoretical and unlikely. In concluding that the Sierra Club failed to prove that there is a substantial probability that any harm would actually result from the level of monitoring frequency, the court explained that the Sierra Club’s standing simply “stacks speculation upon hypothetical upon speculation.”

The Sierra Club may contest this opinion by petitioning the three-judge panel to reconsider the case, or petition the full D.C. Circuit en banc to rehear the case.