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Thursday, August 21, 2008

U.S. Court of Appeals rejects E.P.A. limits on emissions rules

by Felicity Barringer, New York Times, August 19, 2008

A federal appeals court on Tuesday threw out an Environmental Protection Agency rule limiting the ability of states to require monitoring of industrial emissions.

The 2-to-1 ruling by the United States Court of Appeals for the District of Columbia Circuit is the most recent in a series of judicial setbacks to the Bush administration’s efforts to reshape federal policies under the Clean Air Act.

Under 1990 amendments to the original Clean Air Act, states were allowed to issue permits limiting pollution emissions from industrial facilities, like refineries or utilities. To ensure compliance, Congress required states to set more stringent monitoring requirements if they deemed federal requirements inadequate.

The E.P.A. gave states this leeway until 2006, when it reversed course and prohibited the states from requiring new monitoring. Environmental groups challenged the agency, saying that the new rule kept public agencies from gathering and making available the best data about industrial contributions to air pollution.

“E.P.A.’s about-face means that some permit programs do not comply” with federal law, Judge Thomas B. Griffith wrote in the majority opinion. He added that thousands of permits allowing the operation of industrial facilities might not comply with the law “because their monitoring requirements are invalid.”

Judge David B. Sentelle joined Judge Griffith’s opinion.

The ruling by the court, which has jurisdiction over most federal agency rules, was another judicial rebuke to the E.P.A.’s recent policies, leaving few of its major initiatives on air pollution intact.

The suit, brought by the Sierra Club, was opposed by the environmental agency and several industry groups, including the Alliance of Automobile Manufacturers and the American Petroleum Institute.

“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,” Jonathan Adler, a law professor at Case Western Reserve University, commented on the case on a legal affairs blog, The Volokh Conspiracy. In an interview, Professor Adler said the agency “was giving business a bit of a break; was saying to states: You can’t do more.”

But he added, “One of the ways states experiment is not only being more protective but being more protective more cheaply. They win if they figure out a way to make environmental controls less costly.”

Keri N. Powell, a lawyer with Earthjustice who argued the case for the environmental groups, said the 1990 law was designed to give states power to fill any gaps left by the federal government and provide the public with data about industrial emissions.

“The idea was to make this information accessible to public and to state governments,” Ms. Powell said. “States are the front lines. They issue the permits.”

She added that, with the 2006 rule, “what they did was ban monitoring.”

“They did it,” she said, “even though the E.P.A. admitted that existing monitoring wasn’t good enough.”

Ms. Powell concluded, “That was just outrageous and defied the plain language” of the law.

Representatives of the Alliance of Automobile Manufacturers and the American Petroleum Institute did not immediately return calls seeking comment.

In his dissent, Judge Brett A. Kavanagh, like his colleagues, made reference to a famous dictum from Justice Felix Frankfurter. “I strongly align myself with the majority’s quotation from Justice Frankfurter about the best tool of statutory interpretation: 1) Read the statute. 2) Read the statute. 3) Read the statute!” Judge Kavanagh wrote.

And, he added, the relevant parts of the Clean Air Act support the E.P.A.

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