EDF, Allies Present D.C. Circuit with Arguments for Closing “Toxic Loophole”

(Washington, D.C. – October 2, 2018) Environmental Defense Fund (EDF) and a coalition of seven other environmental, environmental justice, and public health organizations are asking the courts to close a damaging new EPA loophole for toxic air pollution. 

The groups are challenging the loophole in the U.S. Court of Appeals for the D.C. Circuit. They filed their opening brief late last night.

“This loophole upends the whole concept of our country’s clean air protections. It was created unlawfully, and it risks exposing our families and communities to unacceptably high levels of toxic and dangerous pollutants such as benzene,” said EDF Lead Attorney Tomás Carbonell. “We look forward to presenting a strong case to the court that this loophole should be permanently closed.”

EPA’s new loophole applies to “maximum achievable control technology,” or 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. 

Those “major source” facilities had to comply with the MACT standards for as long as they operated – until January, when EPA suddenly announced the loophole. Now, facilities can opt out of the MACT if their pollution levels drop below the threshold.

Under the loophole, thousands of industrial facilities across the country would be eligible to operate with weaker, or no, air pollution controls. An EDF report found at least 18 major facilities in the Houston area alone that are eligible to use the loophole.

Then-EPA Administrator Scott Pruitt created the loophole unlawfully – in a four-page memo issued without notice or public comment and without considering the damage to Americans’ health and the environment.

The loophole is one of a long line of Trump administration attacks on America’s clean air protections – including attempts to undermine limits on climate pollution and toxic air pollution from power plants, protections on pollution from oil and gas facilities, and clean car standards.

Earthjustice, California Communities Against Toxics, Environmental Integrity Project, Louisiana Bucket Brigade, Ohio Citizen Action, Sierra Club, and Natural Resources Defense Council have joined EDF in the lawsuit against the toxic loophole. The state of California, which is also challenging the loophole, filed a separate brief yesterday in the D.C. Circuit.