DC Circuit strikes down EPA ban on state pollution monitoring
- United States
- 08/20/2008
The US Court of Appeals for the District of Columbia Circuit on Tuesday vacated a 2006 Environmental Protection Agency (EPA) rule prohibiting state and local governments from monitoring air pollution below acceptable levels set by the EPA for “stationary” sources such as power plants and factories. The court wrote that the rule violated Title V of the Clean Air Act because the EPA’s monitoring protocols themselves violated the Act, and because the rule prevented state and local governments from making up for its shortcomings. In the decision, the court posed the question facing local governments obligated to issue permits to the facilities:
... how should a permitting authority respond to an emission standard that has a periodic monitoring requirement inadequate to the task of assuring compliance? For example, suppose there is a standard that limits emission from a given stationary source to X units of pollutant per day. Suppose also that the standard requires annual monitoring. Where annual testing cannot assure compliance with a daily emission limit, may the permitting authority supplement the monitoring requirement “to assure compliance with the permit terms and conditions,” as the Act commands?
The EPA had argued that it had the discretion to decide what measures were or were not adequate under the Act, but the court disagreed:
Title V 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. Fundamental to this scheme is the mandate that “[e]ach permit . . . shall set forth . . . monitoring . . . requirements to assure compliance with the permit terms and conditions.” By its terms, this mandate means that a monitoring requirement insufficient “to assure compliance” with emission limits has no place in a permit unless and until it is supplemented by more rigorous standards.
The EPA has recently faced increasing conflict with states seeking tighter pollution controls. In July, California Attorney General Jerry Brown formally notified the EPA that the state would file a lawsuit against the agency if it refused to issue rules regulating greenhouse gas emissions from vehicles as well as industrial and agricultural machinery. In January, California filed suit to appeal the EPA’s previous denial of a request for a waiver that would have allowed California and 16 other states to impose stricter greenhouse gas emissions standards on cars and light trucks. In May, a report by the US House Committee on Oversight and Government Reform found that the White House had influenced that decision and the administration later refused to turn over requested documents concerning the decision to the committee, citing executive privilege.
