After more than four years of stalling tactics by the Environmental Protection Agency, a federal appellate court just might finally consider the matter of 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 favor of the EPA.

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

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

The law also directed the EPA to study whether further emission reductions would be required following implementation of the reformulated gasoline (search) rules. This study was then used by the EPA to justify issuing the “Tier 2” standards -- here’s where the controversy begins. The EPA claimed that, unless low-sulfur gasoline (search) was mandated nationwide, the emissions reduction accomplished under the Tier 2 rules might be nullified -- citing auto makers’ 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 the EPA. According to NAFA’s lawsuit, however, a report prepared for NAFA by an independent emissions testing laboratory indicates the EPA rigged the test to achieve a pre-ordained 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 2/3 of the final estimate…,” concluded the laboratory.

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

Four years later, the public may now be paying a real price both in terms of higher gas costs and increased pollution as a result of the 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 $0.50 increase occurring between March-July on the EPA’s low sulfur regulations and limitations on gasoline refinery capacity.

NAFA estimates the costs of the low sulfur rules are in the $0.20-0.25 range. But the ultimate irony -- as pointed out by the Competitive Enterprise Institute’s Dr. Kay Jones in 1999 using the EPA’s own data -- is that the agency’s Tier 2 rules may actually worsen air pollution.

Although the 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 Dr. Jones, citing work done 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 Dr. Jones. His prediction has come true according to some leading atmospheric scientists -- NOx reductions may, in fact, be increasing urban ozone levels around the country.

You would think that a federal court would be eager to get involved where a federal agency may have engaged in faulty scientific testing resulting in higher costs to consumers and more pollution. Yet, the D.C. Court of Appeals seems on the verge of letting the EPA get away with it.

After allowing the EPA to stall the case for four years, the Court granted the EPA’s objection to a request by NAFA to extend by 30 days the filing of its opening brief. Such extensions are routine and are 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.

The 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 the EPA's motion, denying NAFA an opportunity to address the technicalities as would almost any court. 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 technical matters that EPA objected to.

If not granted, the Feb. 14 hearing is likely to be short and sweet -- in favor of the EPA, but against all the rest of us.

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

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