D.C. Circuit Hears Argument Today in Lawsuit Challenging EPA Loophole for Toxic Air Pollution

(Washington, D.C. – April 1, 2019) The U.S. Court of Appeals for the D.C. Circuit will hold oral argument this morning in a case about a dangerous new loophole created by then-EPA Administrator Scott Pruitt that could increase Americans’ exposure to toxic air pollution.

“This loophole puts communities across our country at risk of increased exposure to benzene and other dangerous or cancer-causing pollutants,” said Tomás Carbonell, lead attorney for Environmental Defense Fund, which is a party to the case. “The loophole was created unlawfully and violates the Clean Air Act. It should be closed immediately.”

The case centers around “maximum achievable control technology” (MACT) standards for hazardous air pollutants under the Clean Air Act. These standards generally apply to large industrial facilities like refineries and chemical plants that emit high amounts of 187 dangerous or cancer-causing pollutants.

Under a long-standing policy adopted in 1995, these “major source” facilities had to comply with the MACT standards for as long as they operated. Then, in January of 2018, Pruitt suddenly and unlawfully withdrew the policy in a four-page memo issued without notice or public comment and without considering the damage to Americans’ health and the environment.

Under Pruitt’s loophole, thousands of industrial facilities across the country could be eligible to operate with weaker air pollution controls – or even with no air pollution controls at all. An EDF report found at least 18 major facilities in the Houston area alone that are eligible to use the loophole, potentially resulting in hundreds of thousands of pounds of additional health-harming pollution.

Environmental Defense Fund joined 10 other environmental, environmental justice, and public health organizations – Earthjustice, California Communities Against Toxics, Downwinders at Risk, Environmental Integrity Project, Hoosiers Environmental Council, Louisiana Bucket Brigade, Natural Resources Defense Council, Ohio Citizen Action, Sierra Club, and Texas Environmental Justice Advocacy Series – to file a lawsuit. The state of California is also challenging the loophole.

The case will be argued before a three-judge panel of the D.C. Circuit this morning, shortly after 9:30 a.m. Judges Rogers, Wilkins and Silberman will hear the case in courtroom 31.