EDF Vows to Continue Fight Against Air Toxics Loophole after D.C. Circuit Declines to Rehear Case

(Washington, D.C. – January 22, 2020) EDF plans to continue its fight against the Trump administration’s creation of a loophole for hazardous industrial air pollution, in spite of a procedural setback in the U.S. Court of Appeals for the D.C. Circuit today.

The D.C. Circuit declined a request from EDF, 10 other environmental and community groups, and the state of California to reconsider an August decision that barred initial challenges to that EPA loophole due to concerns that EPA’s action was not yet fully final. That decision concluded that the memorandum creating the loophole has no legal force and effect, and cannot be relied upon by EPA or state permitting authorities. Neither the August decision nor today’s order addressed the merits of the case.

“Although we are disappointed by today’s decision, we will continue to fight this reckless and unlawful effort by Trump’s EPA to undermine Clean Air Act protections against harmful industrial air pollution,” said Tomás Carbonell, lead attorney for Environmental Defense Fund. “EPA’s own analysis shows that this loophole could allow thousands of facilities to opt out of life-saving pollution standards. That would put people across the country at more risk from benzene and other dangerous or cancer-causing pollutants.”

The request for a rehearing was heard en banc by the D.C. Circuit. Judge Judith Rogers issued a dissent forcefully opposing the court’s decision to deny rehearing, saying that “EPA’s new ‘interpretation’ of the Clean Air Act will have continued reverberations that cut against Congress’s design in a significant manner, the more deserving of en banc consideration.”

The case 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 pollutants.

Until January 2018, those “major source” facilities had to comply with the MACT standards for as long as they operated. But in January 2018, former EPA Administrator Scott Pruitt issued a four-page memo – without any opportunity for public comment and with no prior analysis of pollution or health impacts – allowing facilities to opt out of MACT standards by reclassifying themselves as smaller “area sources.”

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. In July 2019 – a year and a half after it started implementing the loophole – EPA formally proposed to adopt a nationwide rule adopting the memo as binding policy.

EDF joined 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 to challenge the loophole. In August 2019, a three-judge panel of the D.C. Circuit ruled 2-1 for EPA on a procedural technicality. Today the court declined to rehear the case.