State of Mississippi, et al. v. U.S. Environmental Protection Agency (Ozone NAAQS)


U.S. Court of Appeals for the D.C. Circuit

NAHB Involvement


On March 12, 2008, EPA issued a new national ambient air quality standard (NAAQS) for ozone (2008 NAAQS). The revision lowered the ozone standard from 0.084 to 0.075 parts per million (ppm). The new 0.075 ppm ozone standard affects 18 of the top 20 housing markets. Four of the markets will now become "non-attainment" and the other 14 will have to create additional regulations to ensure that they meet the 0.075 ppm standard. Furthermore, the EPA estimates that an additional 241 counties will be in non-attainment under the new standard.

NAHB, along with a number of industry groups and states, filed a petition for review on May 27, 2008, challenging the ozone NAAQS as impermissibly stringent. However, in March 2009, EPA was granted a suspension of the briefing schedule for six months.

On Sept. 16, 2009, EPA filed a notice with the court announcing its intent to reconsider the 2008 NAAQS while still keeping the standard in place, which NAHB opposed on Oct. 16, 2009. On Jan. 21, 2010, the court granted EPA's motion to hold the cases in abeyance. Shortly thereafter, EPA proposed revisions to its 2008 NAAQS. NAHB filed comments on the proposed revisions on March 22, 2010.

EPA had originally planned to issue a final reconsidered NAAQS in August 2010. However, the agency repeatedly sought, and was granted, a continued stay of the litigation through August 2011 while it continued to work on the revised NAAQS.

In a surprising turn of events, on Sept. 2, 2011, the White House, through the Office of Management and Budget, called on EPA to withdraw its reconsideration, citing, among other concerns, the severe economic impact that would result from further lowering the ozone NAAQS. The White House's decision allowed litigation on the 2008 NAAQS to finally proceed.

NAHB and the other industry petitioners filed their brief on April 17, 2012. The government filed its response on July 2, 2012, and NAHB and the other industry petitioners filed their reply on Aug. 13, 2012. Oral argument was held on Nov. 16, 2012. On July 23, 2013, the court issued its opinion, largely in favor of EPA. The court denied NAHB's and the other industry petitioners' challenge against the ozone NAAQS, and denied all but one of the environmental groups' and state governments' challenges as well. Significantly, the court did not order EPA to issue a more stringent primary ozone NAAQS.

Environmental groups filed a petition for rehearing with the court, and on Nov. 15, 2013, industry groups, including NAHB, filed a court-ordered response in opposition to rehearing the case. On Dec. 11, 2013, the D.C. Circuit denied the environmentalists' petition, but did agree to make one small change to the text of the original opinion. At long last, NAHB's participation in this case seemed complete – then the electric utilities filed a cert petition with the U.S. Supreme Court on April 11, 2014. In order to preserve NAHB's ability to participate at the high court in the unlikely event the court takes this case, NAHB filed a letter in support of the utilities' petition.

On Oct. 6, 2014, the Supreme Court denied the utilities' petition. NAHB's participation in this matter is now complete.