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Appeals Court Vacates EPA's Prohibition on Local Emissions Limits

In a decision that could affect hundreds of power plants and other sources of air pollution nationwide, a federal appeals court recently struck down an Environmental Protection Agency (EPA) rule preventing states and local governments from imposing stricter emissions-monitoring limits than those set down by federal authorities.

The United States Court of Appeals for the District of Columbia Circuit said in an Aug. 19 opinion that the EPA's rule violated provisions of the Clean Air Act (CAA) which require adequate monitoring of emissions to ensure compliance with pollution limits, and said federal standards are not always sufficient to ensure proper monitoring.

In amending the CAA in 1990, Congress created a national permit program that requires many sources of air pollution to obtain permits that include relevant emission limits and monitoring requirements. Title V of the act gives EPA a supervisory role over the program, which includes the duty to identify its "minimum elements" and the opportunity to object to permits that do not comply with the CAA. State and local authorities were assigned the task of issuing permits -- but only if EPA first approved their proposals for how to implement the permit programs. If a permitting authority failed to propose an acceptable program, responsibility for issuing permits fell to the EPA.

In 2002 EPA attempted to alter the rule to give state and local permitting authorities the power to supplement monitoring requirements that they found inadequate. But when that move was challenged by an industry group EPA did an about face, settling the litigation by adopting a final rule prohibiting local permitting authorities from supplementing inadequate monitoring requirements. After protracted legal wrangling, EPA adopted the revised rule in December 2006. Several environmental groups challenged the 2006 rule, arguing that it violated the CAA.

By a 2-1 vote the court vacated the 2006 rule, finding that it was "unambiguously preclude[d]" by Title V.

"The question in this case is whether permitting authorities may supplement inadequate monitoring requirements when EPA has taken no action," judge Thomas Griffith wrote in the Court's majority opinion. "We read Title V to mean that somebody must fix these inadequate monitoring requirements. We leave for another day the question of who wins when EPA and state and local permitting authorities conflict over whether a given requirement is sufficient 'to assure compliance,' because the question is not presented in this case."

The Court upheld EPA's Part 70 Rules, concluding that their monitoring provisions are consistent with the CAA because they allow state and local permitting authorities to supplement inadequate monitoring requirements.

Keri Powell, an Earthjustice attorney who argued the case on behalf of the Sierra Club, Environmental Integrity Project, Environmental Defense Fund and Natural Resources Defense Council, called the decision "a huge victory for everyone who breathes...We can't have strong enforcement of our clean air laws unless we know what polluters are putting into the air."

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