EDF, Allies Ask D.C. Circuit to Rehear Case about EPA’s Toxic Pollution Loophole

(Washington, D.C. – October 4, 2019) The state of California and a dozen environmental and citizens groups, including EDF, are asking the U.S. Court of Appeals for the D.C. Circuit to reconsider a decision that could increase Americans’ exposure to toxic air pollution.

The groups petitioned the court today to rehear the case or hear it en banc.

“The Trump EPA’s loophole puts people across the country at risk increased emissions of benzene and other dangerous or cancer-causing pollutants,” said Tomás Carbonell, lead attorney for Environmental Defense Fund. “A matter this serious deserves further attention from the court, for the sake of protecting both public health and the rule of law.”

The case at issue involves “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.

Until January 2018, those “major source” facilities had to comply with the MACT standards for as long as they operated. In January 2018, former EPA Administrator Scott Pruitt created a loophole allowing facilities to opt out of the MACT standards if their pollution levels drop below major source thresholds.

EPA has been implementing the loophole ever since the memo was issued, even though its own analysis indicates that almost four thousand facilities across the country could ultimately use the loophole – potentially resulting in millions of pounds of additional hazardous air pollution. This June, a year and a half after it started implementing the loophole, EPA formally proposed to codify the change in policy.

EDF was among those who challenged the loophole in court. In August, a split three-judge panel of the D.C. Circuit ruled for EPA on a procedural technicality. The decision did not address the merits of the case.

The August ruling said that EPA’s memo creating the loophole does not have “direct and appreciable” legal consequences, so it cannot be challenged in court. However, the court’s opinion made clear that the memo itself does not have any legal force or effect, and thus cannot be relied on by EPA, industry or state permitting authorities. The court’s majority opinion says the memo is “all bark and no bite.” (Opinion, page 16). A dissenting judge in the case forcefully argued that the loophole was unlawfully promulgated and should be vacated.

Today’s petition for rehearing outlines the reasons why allowing the loophole to stand would be dangerous, saying:

“These petitions challenge a nationally applicable decision, which unequivocally commits the Environmental Protection Agency to relieve certain industrial sources of air pollution from otherwise mandatory emissions standards … The opinion thus has potentially wide-ranging jurisdictional consequences, warranting rehearing.” (Petition, pages 1 and 22).

The Attorney General of California, Sierra Club, Earthjustice, Natural Resources Defense Council, California Communities Against Toxics, Downwinders at Risk, Environmental Integrity Project, Hoosier Environmental Council, Louisiana Bucket Brigade, Ohio Citizen Action, and Texas Environmental Justice Advocacy Services joined EDF on today’s petition.