Bush Administration Rule on Pollution Struck Down

By Del Quentin Wilber
Washington Post Staff Writer
Wednesday, August 20, 2008

A federal appeals court yesterday struck down a Bush administration rule that prevented states and local governments from imposing stricter monitoring of pollution generated by power plants, factories and oil refineries than required by the federal government.

In a 2 to 1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the Environmental Protection Agency rule violated a provision of the Clean Air Act, which requires adequate monitoring of emissions to ensure compliance with pollution limits.

Judge Thomas B. Griffith wrote for the majority that federal standards often are not sufficient to ensure proper monitoring, so states and local governments must be allowed to fill the gap.

"The question in this case is whether permitting authorities may supplement inadequate monitoring requirements when EPA has taken no action," Griffith wrote.

Environmental groups, which brought the lawsuit, said the decision was a significant victory that will help ensure that pollution levels are accurately tracked and reported.

"If the monitoring isn't good enough, the whole system falls apart," said Keri Powell, a lawyer with the environmental law firm Earthjustice who argued the case for four environmental groups, including the Sierra Club and the Natural Resources Defense Counsel.

The ruling "affects every major stationary air-pollution source in the country. . . . This is a very important case, just in terms of the public's right to know and guarding the public's opportunity to keep tabs" on polluters, Powell said.

An EPA spokesman, Dale Kemerly, said the agency is reviewing the ruling and will "determine the appropriate course of action once the review is complete. We are still assessing the implications of the decision."

The events that led to yesterday's decision go back years. In 1990, Congress amended the Clean Air Act in an effort to simplify the pollution permitting process for factories, power plants and other industries. The amendments gave state and local jurisdictions the task of issuing the pollution permits with EPA oversight. State and local governments have issued more than 16,000 pollution permits since then.

But the local governments have faced questions of how to update monitoring requirements in the absence of clear guidance from federal regulators.

In 2002, the EPA proposed a regulation that would have required states and local governments to beef up monitoring in the absence of federal guidance or strong pollution-tracking standards. But industry groups challenged the proposed rule, and the EPA backed down.

Instead, the agency adopted a rule that prohibited states and local governments from supplementing the monitoring efforts. That rule was struck down by the appeals court in 2004 because the EPA did not allow for a notice and comment period.

In 2006, after a comment period, the EPA passed the identical rule. The environmental groups then filed suit.

Joined by the appellate court's chief judge, David B. Sentelle, Griffith wrote that the Clean Air Act provision "is a complex statute with a clear objective: it enlists EPA and state and local environmental authorities in a common effort to create a permit program for most stationary sources of air pollution."

A fundamental component of that permit program, the judge wrote, was the monitoring requirement.

"By its terms, this mandate means that a monitoring requirement insufficient 'to assure compliance' with emission limits has no place in the permit unless and until it is supplemented by more rigorous standards," he wrote.

Judge Brett M. Kavanaugh dissented, writing that the EPA has the legal authority "to determine whether state and local permitting authorities can impose additional monitoring requirements."

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