Monday, December 22, 2008

Sierra Club v. EPA

Dec 18: In the U.S. Court of Appeals, D.C. Circuit, Case No. 02-1135. The case was consolidated with Nos. 03-1219, 06-1215, 07-1201, and the American Chemistry Council intervened on behalf of EPA. Petitioners challenged the final rules promulgated by U.S. EPA exempting major sources of air pollution from normal emission standards during periods of "startups, shutdowns, and malfunctions" (SSM) and imposing alternative, and "arguably less onerous requirements in their place."

The 2-1 majority Appeals Court said, "Because the general duty that applies during SSM events is inconsistent with the plain text of section 112 of the Clean Air Act (CAA), even accepting that 'continuous' for purposes of the definition of 'emission standards' under CAA section 302(k) does not mean 'unchanging,' the SSM exemption violates the CAA’s requirement that some section 112 standard apply continuously. Accordingly, we grant the petitions and vacate the SSM exemption."

In a final rule adopted in 2003, EPA “decided instead to adopt a less burdensome approach,” to the SSM regulation requiring members of the public to make a “specific and reasonable request” of the permitting authority to request the SSM plan from the source and thus making it more difficult to access and obtain. The Sierra Club challenged the 2003 Rule in a petition for review. The Natural Resources Defense Council (NRDC) also filed a petition for reconsideration on the ground that any limitation on the public availability of the SSM plans was unlawful. EPA agreed to take comment on the new SSM provisions, and the consolidated cases were held in abeyance pending reconsideration.

In 2006, EPA retracted the requirement that sources implement their SSM plans during SSM periods; and instead comply with the "general duty to minimize emissions.” EPA required a "post-event reporting" and eliminated the requirement that the Administrator obtain a copy of a source’s SSM plan upon request from a member of the public and determined that the public may only access those SSM plans obtained by a permitting authority; but the permitting authority was not "required to do so" -- it was discretionary.

The petitioners, petitioned for reconsideration and contended that the exemption from compliance with emissions standards during SSM events is both unlawful and arbitrary, and that the 2002, 2003, and 2006 rules unlawfully and arbitrarily fail to 'assure compliance' with 'applicable requirements' under Title V.

The majority Appeals Court ruled, "In sum, petitioners’ challenge to the exemption of major sources from normal emission standards during SSM is premised on a rejection of EPA’s claim of retained discretion in the face of the plain text of section 112. 'Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent'. NRDC, 489 F.3d at 1374 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)). The 1990 Amendments confined the Administrator’s discretion, see New Jersey, 517 F.3d at 578, and Congress was explicit when and under what circumstances it wished to allow for such discretion, id. at 582. 'EPA may not construe [a] statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.' New Jersey, 517 F.3d at 583 (quoting Whitman, 531 U.S. at 485). Accordingly, we grant the petitions without reaching petitioners’ other contentions, and we vacate the SSM exemption. See New Jersey, 517 F.3d at 583 (citing Allied Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).

The minority, dissenting opinion indicated, "I do not agree that we have jurisdiction over Sierra Club’s petition for judicial review. The original regulations at issue. . . exempt periods of startup, shutdown, and malfunction from opacity and non-opacity emission standards. When EPA promulgated these regulations in 1994, Sierra Club took no legal action. Yet under the Clean Air Act a petition for judicial review of an EPA regulation must be filed within 60 days of the regulation’s publication in the Federal Register. . ."

Access the complete opinion and dissent (click here).

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