A federal appeals court has struck down the ill-advised Bush Administration rule that prevented states and local governments from imposing stricter monitoring of pollution generated by power plants, factories and oil refineries than required by the federal government. In a 2 to 1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the Environmental Protection Agency rule violated a provision of the Clean Air Act, which requires adequate monitoring of emissions to ensure compliance with pollution limits. Judge Thomas B. Griffith wrote for the majority that since federal standards often are not sufficient to ensure proper monitoring, states and local governments must be allowed to fill the gap. The judge wrote: “The question in this case is whether permitting authorities may supplement inadequate monitoring requirements when EPA has taken no action.”
This court ruling in the suit brought by environmental groups was a significant victory that will help ensure that pollution levels are accurately tracked and reported. Keri Powell, a lawyer with the environmental law firm Earthjustice, who argued the case for four environmental groups, including the Sierra Club and the Natural Resources Defense Council, observed:
If the monitoring isn’t good enough, the whole system falls apart. The ruling affects every major stationary air-pollution source in the country. . . . This is a very important case, just in terms of the public’s right to know and guarding the public’s opportunity to keep tabs on polluters.
The events that led to this ruling go back years. In 1990, Congress amended the Clean Air Act in an effort to simplify the pollution permitting process for factories, power plants and other industries. The amendments gave state and local jurisdictions the task of issuing the pollution permits with EPA oversight. State and local governments have issued more than 16,000 pollution permits since then. But the local governments have faced questions of how to update monitoring requirements in the absence of clear guidance from federal regulators.
In 2002, the EPA proposed a regulation that would have required states and local governments to beef up monitoring in the absence of federal guidance or strong pollution-tracking standards. But industry groups challenged the proposed rule, and the EPA backed down. Instead, the agency adopted a rule that prohibited states and local governments from supplementing the monitoring efforts. That rule was struck down by the appeals court in 2004 because the EPA did not allow for a notice and comment period. In 2006, after a comment period, the EPA passed the identical rule. This resulted in the environmental groups filing suit. Judge Griffith wrote in his order:
The Clean Air Act provision is a complex statute with a clear objective: it enlists EPA and state and local environmental authorities in a common effort to create a permit program for most stationary sources of air pollution. By its terms, this mandate means that a monitoring requirement insufficient to assure compliance’ with emission limits has no place in the permit unless and until it is supplemented by more rigorous standards.
Judge Griffen was joined by the appellate court’s chief judge, David B. Sentelle. Judge Brett M. Kavanaugh dissented, writing that the EPA has the legal authority “to determine whether state and local permitting authorities can impose additional monitoring requirements.”
Source: Washington Post
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