Court to EPA: “Read the Statute. Read the Statute. Read the Statute.”

It’s that time of the month – for the U.S. Court of Appeals for the D.C. Circuit to issue yet another decision overturning a Bush EPA rule for violating the plain language of the Clean Air Act. Yesterday’s decision in Sierra Club v. EPA vacated an EPA rule that actually had prohibited state, local and EPA permitting officials from including adequate air pollution monitoring in the operating permits of approximately 18,000 industrial facilities, such as utilities, oil refineries, incinerators, cement plants and the like. NRDC was one of the prevailing plaintiffs in the suit, represented by extremely talented counsel at Earthjustice.
 
EPA’s rules previously had not only allowed permitting officials, but required them, to impose air pollution monitoring that was sufficient to “assure compliance” with all air pollution requirements included in industrial operating permits.

EPA stared that sensible requirement down and said, “Adequate monitoring? Assure compliance? Not so much our bag. We prefer letting polluters continue with monitoring that we fully acknowledge to be inadequate, and prohibiting states from doing something about it. We’ll get around to dealing with this our way, in our own sweet time.” 

And when would that be? Well, never, based on EPA’s sorry track record of failing to correct monitoring that it knew to be deficient.

In a passage that reads like a hectoring haiku to incorrigible Bush EPA political officials, the court found EPA’s rule to “run counter to Justice Frankfurter’s timeless advice on statutory interpretation: ‘(1) Read the statute; (2) read the statute; (3) read the statute.’”

A waggish colleague of mine remarked that the EPA political officials responsible for this travesty should be forced to write those words on a blackboard 1,000 times. The problem is, those political officials have since left EPA to rejoin the private sector, where they are now representing the very same industry forces that cajoled EPA to issue this train wreck of a rule in the first place.

Oh and it gets even better (or worse). In 2002, EPA had issued a rule codifying its longstanding position that state and local permitting authorities were authorized and indeed required to improve inadequate air pollution monitoring in permits for industrial polluters. A coalition of utility companies called the Utility Air Regulatory Group (UARG) challenged that rule in court. (Could there be a better villainous acronym for  polluting utility companies than “UARG”?)

At this point it’s worth quoting the court’s opinion, which flavors an otherwise dry recitation of events with a single italicized word that evokes an image of the judges’ eyebrows creeping up their foreheads, recoiling from EPA’s shamelessness:

Rather than defend the proposed rule, the agency settled the litigation by agreeing to adopt a final rule that would interpret [EPA’s existing rule] to prohibit state and local permitting authorities from supplementing inadequate monitoring requirements.

That’s right – EPA not only backed down in the face of the earlier utility industry lawsuit, the administration joined hands with UARG and issued a new rule that did the exact opposite of what EPA’s industry-challenged rule had done.

That new rule is the one the court struck down yesterday for squarely violating the Clean Air Act. 

So much for the Bush administration’s claimed commitment to federalism; EPA threw state and local agencies under the bus faster than UARG lobbyists could ask EPA for a box of bon bons and a commitment ring to go with their sweetheart deal.

And where is one of the two former Bush EPA officials most responsible for this rule working now? At the private law firm that represents UARG, which intervened on EPA’s behalf in trying (unsuccessfully) to defend this illegal rule. (There is no indication that the former EPA official worked on the lawsuit itself for UARG.)

In fairness, EPA officials can read. I’m confident they even read the statute. The problem is they did not care to do what the statute commanded. EPA preferred to side with industrial polluters over states, the public and air quality. Industry foxes weren’t just guarding the henhouse; the foxes were invited in to have a house party.

In the future, the D.C. Circuit judges need to be a little more blunt with EPA, offering agency officials the following more timely advice on statutory interpretation of the Clean Air Act:

Read the statute. Follow the statute. Stop wasting our time.

About the Authors

John Walke

Director, Clean Air Project, Climate & Clean Air program

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