Federal Appeals Court Bolsters State Monitoring of Air Pollution

A federal appeals court today said state authorities are allowed to establish air pollution monitoring requirements to supplement Environmental Protection Agency requirements that are deemed insufficient. Environmental groups, including the Sierra Club, immediately heralded the decision by the U.S. Court of Appeals for the D.C. Circuit, which voted 2-1 to vacate a rule in the Clean Air Act. The court ruled against the EPA and D.C.-based American Petroleum Institute.

The appeals court, ruling in favor of the Sierra Club, rejected a Bush administration rule that restricted the ability of states to supplement monitoring requirements of the Clean Air Act. The rule prohibited states from issuing monitoring requirements for soot, smog, mercury, and other types of pollution from stationary sources that include power plants and factories. State authorities were required to follow federal standards that Sierra Club officials say were insufficient for monitoring air pollution.

“This is huge victory against one of the most egregious rollbacks of environmental protections in our nation’s history,” Sierra Club Director Carl Pope said in a statement. “As one of the first rollbacks of the Bush Administration, this rule helped set a pattern of limiting the application of environmental laws to benefit polluters and denying the public the right to know about pollution in their communities. Public health should be a top priority, not polluters’ profits. Today’s decision will give states back the tools they need to hold polluters accountable and help ensure that everyone has clean, healthy air to breathe.”

For years, the EPA has gone back and forth on whether to allow state and local authorities the power to supplement monitoring requirements. In 2006, the EPA finally determined the agency alone would fix inadequate monitoring requirements — despite objection from several environmental groups. The EPA says allowing states to add to monitoring requirements is bad policy. State authorities can pass more stringent requirements through legislation, the agency says. “We are reviewing the Court’s decision, and will determine an appropriate course of action once that review is complete. In the meantime, we are still assessing the implications of the decision,” an EPA spokesman, Tim Lyons, told Legal Times.

Chief Circuit Judge David Sentelle was joined by Circuit Judge Thomas Griffith for the majority. “We vacate this rule because it is contrary to the statutory directive that each permit must include adequate monitoring requirements,” Griffith wrote. Circuit Judge Brett Kavanaugh dissented, saying that the pre-existing monitoring requirements under the Clean Air Act are adequate.

But the appeals court left open the question of whose opinion wins when state authorities and the EPA conflict over whether a given requirement is sufficient to ensure compliance with the Clean Air Act. Keri Powell of Earthjustice, in New York, argued the case for the Sierra Club. Cynthia Morris represented the Department of Justice.

Comments

[John Walke]

For additional insights on the decision from a prevailing party in the litigation, NRDC, see my post here: http://switchboard.nrdc.org/blogs/jwalke/court_to_epa_read_the_statute.html.