U.S. Appeals Court Overturns EPA's Pollution Rule

By IAN TALLEYAugust 20, 2008;

WASHINGTON -- In a blow to oil refiners, chemical makers and other polluting industries, a federal appeals court threw out a rule that prevented states from implementing tougher pollution-monitoring requirements.
The decision by the U.S. Court of Appeals for the District of Columbia Circuit could lead to higher compliance costs and give states, local authorities and environmentalists more data that could be used to prosecute polluters, environmentalists said.
The decision marks the latest instance in which a federal court has rejected the approach to regulating harmful emissions taken by the administration of President George W. Bush. "It is a pretty serious rebuke of the Bush administration's efforts to tie the hands of states at the behest of industry," said John Walke, director of the clean-air program at the Natural Resources Defense Council. The court found the Environmental Protection Agency's rule under the Clean Air Act "is contrary to the statutory directive that each permit must include adequate monitoring requirements."
EPA spokesman Timothy Lyons said the agency "will determine an appropriate course of action" after it reviews the decision. Historically, the EPA has had little success in getting decisions from the appeals court reversed.
The American Petroleum Institute, whose members include Exxon Mobil Corp., Chevron Corp. and ConocoPhillips, was a party in the case in support of the EPA. API spokeswoman Cathy Landry said the organization's lawyers were "in the process of reviewing the decision to determine the impact on the industry."
Amendments to the Clean Air Act enacted in 1990 compelled industrial polluters to obtain state and local permits that identify all emission limits and include "monitoring...requirements to assure compliance with the permit terms and conditions." Because the existing monitoring requirements didn't always assure compliance, some states wanted to add more requirements. The Bush administration rule prohibited state action.
The court's decision was one in a string of rulings scrapping Bush administration air-quality policies. Last month, the same court struck down the administration's signature air-quality program, the Clean Air Interstate Rule -- one of the few Bush administration efforts applauded by the environmental community. The regulation, announced in 2005 and covering more than two dozen states, sought to slash emissions that contribute to respiratory illnesses by instituting a "cap and trade" system in which companies that exceed their emissions caps can buy allowances from companies that do not.
The EPA had predicted the rule would prevent about 17,000 premature deaths a year. The court, in response to a suit brought by power companies, invalidated the regulation.
In February, the appeals court rejected the EPA's decision to remove mercury from a list of pollutants the agency is required to control at each power plant. Last year, a divided Supreme Court ruled that carbon dioxide and other so-called greenhouse gases are air pollutants under the Clean Air Act, and that the Bush administration had wrongly refused to limit emissions of those gases.