U.S. Supreme Court Declines Review of Emissions Case
The U.S. Supreme Court declined to review a lower court’s ruling prohibiting U.S. EPA from suspending normal emissions standards for major pollution sources during “startup, shutdown and malfunction” (SSM) periods.
The policy, implemented during Bill Clinton’s presidency through the Clean Air Act’s Title V permitting program, created a loophole by which industrial facilities have evaded federal emissions restrictions by using the SSM exemption during times of normal operation. In 2003, the Bush administration loosened some requirements for SSM, including removal of a requirement that plans be written into facilities’ Title V permits. Under the new rules, industrial plants would not have to submit the plans to EPA for review, nor could the public review such plans without a “specific and reasonable request” from a permitting authority.
Neil Carman, a former Texas state refinery inspector who is now air director at the Sierra Club’s Texas chapter, notes:
Startups, shutdowns and malfunctions create some of the highest volumes and worst toxic air pollution released by large industrial factories, and nearby communities suffer the horrible impacts of the chemicals dumped into their air supply.
Marti Sinclair, who chairs the Sierra Club’s Clean Air Team, explains:
Under this notorious EPA exemption, industrial facilities have been allowed to operate like a fleet of junk cars parked in neighborhoods while spewing blue smoke, misfiring, backfiring, stalling and chugging.
Several industry groups, including the American Petroleum Institute and the American Forest & Paper Association, argue the exemption is necessary because:
[It is sometimes] impossible for businesses to meet the otherwise applicable emission standard. EPA promulgated this rule because it recognized that startup, shutdown, and malfunction periods present unique and disparate challenges.
The exemption was tossed out in 2008 by the U.S. Court of Appeals for the D.C. Circuit in response to a lawsuit filed by a coalition of environmental advocacy groups. A three-judge panel ruled, 2-1, that the Clean Air Act did not allow the agency “to relax emission standards on a temporal basis,” as Judge Judith Rogers wrote for the majority.
The Supreme Court’s decision not to grant review in American Chemistry Council v. Sierra Club means the loophole is closed and obligated facilities will have to continue to fully account for their emission discharges under the Clean Air Act.
Image: Flickr/James Jordan
