Portland Cement Association v. U.S. EPA

Dec 9: In the U.S. Court of Appeals, D.C. Circuit, Case Nos. 10-1358, and 10-1359, Consolidated with 10-1363, 10-1366, 10-1367, 10-1369, 10-1373, 10-1374, 10-1376, 10-1379, 11-1012, 11-1244 and 10-1361, 10-1364, 10-1365, 10-1368, 10-1370, 10-1372, 10-1375, 10-1377, 11-1245. On Petitions for Review of a Final Action of the Environmental Protection Agency. In this high profile case, the Appeals Court explains that pursuant to the Clean Air Act (CAA), the U.S. EPA enacted twin rules in 2010 setting emissions standards for portland cement facilities -- one under a section called National Emission Standards for Hazardous Air Pollutants (NESHAP); and the second under a section called New Source Performance Standards (NSPS). Petitioners, Portland Cement Association and other cement manufacturers (PCA), argue that both rules violate the CAA and are arbitrary and capricious. A consortium of environmental groups including the Sierra Club (Environmental Petitioners) filed their own petition, arguing that EPA abused its discretion by declining to include greenhouse gas emissions standards in its NSPS rule.

 

    The Appeals Court said, ". . .we agree that EPA acted arbitrarily when it promulgated the final NESHAP rule and therefore grant PCA's petition for review with respect to EPA's denial of reconsideration on that issue. We also stay the NESHAP standards for clinker storage piles pending reconsideration by EPA. We deny PCA's petitions with respect to all other issues relating to NESHAP and NSPS, and dismiss Environmental Petitioners' petition for lack of jurisdiction."

 

    In its  final summary the Appeals Court ruled, ". . .we grant PCA's petition for review with respect to EPA's denial of reconsideration of the NESHAP rule and remand the rule for further action, deny PCA's petition for review with respect to the NSPS rule, and dismiss Environmental Petitioners' petition for lack of jurisdiction. All of the standards will remain in place except for the NESHAP standards applicable to clinker storage piles, which are stayed pending reconsideration. We nonetheless urge EPA to act expeditiously on remand. . ."

 

    Regarding the Environmental Petitioners, the Appeals Court said, "At various points in their brief, Environmental Petitioners also appear to recast their petition as a challenge to EPA's 'refus[al] to act'. . . But if environmental petitioners are indeed challenging a 'refusal to act,' they should have brought their case in the district court. The Clean Air Act provides that any individual may file suit alleging that EPA has failed 'to perform any act or duty . . . which is not discretionary with the Administrator,' 42 U.S.C. § 7604(a)(2), and that '[t]he district courts shall have jurisdiction' over these suits. . . Because we lack statutory jurisdiction over environmental petitioners' claims, we have no need to consider PCA's alternative argument that environmental petitioners lack Article III standing."

 

    One Justice concurred with the opinion but wrote a lengthy comment separately saying, ". . .I write separately to observe that there is much to be said for Petitioners' argument that EPA should not be permitted to base NESHAP standards on bare emissions data, and that EPA should instead isolate the effect of emissions control technology by controlling for input quality. Because kilns are co-located with raw material quarries and because there is significant variability in the pollutant content of those raw materials, a kiln may have low emissions simply because it happens to be blessed with good inputs, not because it is using a superior control technology. But when the CAA directs EPA to set floors based on 'the emission control that is achieved in practice by the best controlled similar source,'. . . (emphases in original), it would seem to be specifically directing EPA's attention to the active steps a kiln has taken to 'control' its emissions, not simply to the level of emissions itself. . ."

 

    Access the complete opinion (click here). [#Air, #CADC]

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