Unlawful air pollution reinstated with legal protections

In a unanimous decision by a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit, the Environmental Protection Agency (EPA) has been found to have overstepped two years ago in eliminating a legal shield for industrial facilities that violate Clean Air Act permitting requirements due to excess emissions from plant emergencies.

The ruling, issued on Friday, was penned by Judge Neomi Rao, joined by Judge Justin Walker and Senior Judge Douglas Ginsburg. Rao, a Trump appointee, previously served as the White House regulatory chief during an earlier part of that tenure. Senior Judge Ginsburg was placed on the bench by President Ronald Reagan.

The decision comes after the EPA rescinded the break for emergencies soon after the 1990 Clean Air Act amendments were passed. The rationale for rescinding it in 2023 was mainly that it unlawfully encroached on judges' authority to assess civil penalties. However, Rao's primary conclusion was that EPA's rationale for rescinding the Title V affirmative defense was erroneous.

The opinion stated that the injury caused to the associations affected by the rollback of the liability shield is redressable by an order of the court. Rao concluded that the Title V affirmative defense for emergencies is a complete defense to Clean Air Act liability, contrasting this with a separate type of defense that only precludes certain remedies after a source has violated an emission rule.

The lawsuit was brought by the SSM Litigation Group, which includes the American Petroleum Institute and the Corn Refiners Association. During oral arguments on the suit, Walker and Rao had questioned whether the group had the legal standing to bring the litigation.

Environmental groups argue that these emergencies can release enormous amounts of dangerous air pollution and that affirmative defenses create a perverse disincentive to proper maintenance. The frequency of these emergencies is poorly tracked.

It is worth noting that the industry associations that have obtained legal protection in the decision for their facilities violating Clean Air Act regulations during unforeseen emergency emissions exceedances are not named explicitly in the available search results.

The EPA's definition of emergencies as "reasonably unforeseeable events" outside of the source's control could potentially lead to further legal challenges and debates. The court's decision, however, marks a significant victory for industries operating under Title V permits, providing them with a legal shield for unforeseen emergencies that result in excess emissions.

Unlawful air pollution reinstated with legal protections