Another EPA Air Rule Goes Down:

Today the U.S. Court of Appeals for the D.C. Circuit voided yet another Bush Administration Clean Air Act regulation in Sierra Club v. EPA. The majority opinion by Judge Griffith (joined by Chief Judge Sentelle) begins:

The 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The Environmental Protection Agency (“EPA”) promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. We vacate this rule because it is contrary to the statutory directive that each permit must include adequate monitoring requirements.

Judge Kavanaugh has a brief dissent, which begins:

I agree completely with the majority opinion about bedrock principles of statutory interpretation. The plain meaning of the text controls; courts should not strain to find ambiguity in clarity; courts must ensure that agencies comply with the plain statutory text and not bypass Chevron step 1. And I strongly align myself with the majority’s quotation from Justice Frankfurter about the best tool of statutory interpretation: “Read the statute; (2) read the statute; (3) read the statute!” Maj. Op. at 10. In this case, however, I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule.

This decision comes one month after the D.C. Circuit completely vacated the Bush Administration's Clean Air Interstate rule in North Caroline v. EPA. Given the administration's other losses on New Source Review and mercury, among other things, I think it is fair to say that the D.C. Circuit has repudiated the vast bulk of the Bush Administration's clean air regulatory reforms, which were the Administration's most notable and significant (if not always wise) environmental policy initiatives. The Administration devoted more time and effort to these reforms than any other environmental initiative, and they have precious little to show for it.

UPDATE: The NYT covers the decision (and quotes this blog post) here.

UPDATE: The Washington Post reports here, and the WSJ here.

Yet Another Bush EPA Air Rule Goes Down:

The Bush Administration's EPA has had a hard time defending its air pollution regulatory reforms in federal court (as I've noted before). Today, yet another regulation went down in (another case styled) Sierra Club v. EPA. The majority opinion by Judge Rogers, joined by Judge Tatel, begins:

Petitioners challenge the final rules promulgated by the Environmental Protection Agency exempting major sources of air pollution from normal emission standards during periods of startups, shutdowns, and malfunctions (“SSM”) and imposing alternative, and arguably less onerous requirements in their place. Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (“CAA”), even accepting that “continuous” for purposes of the definition of “emission standards” under CAA section 302(k) does not mean unchanging, the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption.

Senior circuit Judge Randolph dissented. I hope to have more to say about the opinion later.

Meanwhile, the EPA ruled yesterday that power plant carbon dioxide emissions should not be considered in the air pollution permit approval process. I expect this decision will be the subject of litigation or a notice-and-comment rulemaking in 2009, if not both.

Did Bush EPA's Loss Strike Down Clinton EPA Rule?

An interesting aspect of Sierra Club v. EPA, the Clean Air Act case I noted yesterday, is that the underlying regulation at issue was adopted under the Clinton Administration. The Bush Administration made some modifications of its own, largely affecting reporting and enforcement of the rule, but the underlying "SSM" exemption (for startups, shutdowns, and malfunctions) was created in 1994. Here's an excerpt from the Washington Post story on the decision:

The agency created the exemption in 1994, and Bush administration officials broadened the interpretation of the provision over time. This made it subject to judicial review, and a coalition of advocacy groups including the Environmental Integrity Project, the Sierra Club, the Louisiana Environmental Action Network, the Coalition for a Safe Environment and Friends of Hudson challenged the provision's legality in court.

"What they did is take a bad provision and turn it into an almost complete barrier to enforcement," said Earthjustice attorney Jim Pew, who argued the case on behalf of the coalition. "This was an attempt to make all of the air-toxics laws unenforceable, and they almost got away with it."

The SSM exemption's history created an interesting wrinkle in the case. It was clearly too late for environmentalist groups to challenge the rule directly, so they hitched on to the Bush Administration's more recent interpretations to secure judicial review. Even so, it's not so clear the court had jurisdiction to review the underlying rule in this case. This was a key point in Senior Circuit Judge Randolph's dissent:

According to Sierra Club, EPA’s rulemakings in 2002, 2003, and 2006 rendered enforcement of the 1994 startup, shutdown, and malfunction regulations more difficult. Even if true, that could hardly have amounted to agency “action” re-promulgating the 1994 regulations, which is what § 7607(b)(1) requires as a prerequisite for judicial review. After all, Sierra Club’s complaint is not that the 1994 regulations are now hard to enforce; it is instead that the 1994 regulations are invalid and always have been. The recent rules did not alter the exemption for startup, shutdown, and malfunction events. The new rules simply modified requirements for each source’s plan regarding implementation of the duty to minimize pollution during the exempt periods.

Thus, Randolph concluded, the Sierra Club could only challenge the Bush Administration revisions, and not the underlying exemption. Based on my initial reads, I think Judge Randolph is right. So, while I am inclined to think the Sierra Club was correct on the merits, and that the SSM exemption contravenes the Clean Air Act, I doubt the D.C. Circuit had jurisdiction to consider and overturn the underlying rule.