WASHINGTON – Environmental Protection Agency Administrator Scott Pruitt today issued a memorandum that will allow industrial polluters to significantly increase air pollution that threatens public health nationwide.
The following is a statement from John Walke, Clean Air Director at the Natural Resources Defense Council:
“We need less smog and soot in our air. But these guidelines will grant polluters amnesty from pollution cleanup obligations and allow them to circumvent notice-and-comment rulemaking involving the public.
“This is just the latest Trump administration assault on our public health. It hands polluters a major loophole to increase harmful smog and soot pollution. This is proof again of the Trump administration’s disdain for transparency and public participation. Given EPA’s dismal track record in court, it’s easy to see why Scott Pruitt fears issuing proper rules that federal courts review for their consistency with federal environmental laws.”
Pruitt today issued a memorandum that concerns the Clean Air Act’s primary permitting program, New Source Review, that applies when existing industrial air polluters increase harmful air pollution significantly. In such cases, the law requires facilities to install modern air pollution control equipment to mitigate those pollution increases.
Pruitt’s memorandum purports to interpret current EPA regulations, for the first time, to allow significant pollution increases to evade controls. The memorandum lets large industrial polluters increase harmful air pollution by hundreds or thousands of tons, by endorsing accounting gimmicks to pretend there has been no pollution increase on paper.
Current EPA clean air regulations require industrial facilities that increase air pollution significantly to adopt state-of-the-art pollution control equipment or other control measures. A facility may determine that there has not been a significant “net” emissions increase—and avoid pollution controls—only after adding and subtracting all contemporaneous emissions increases and decreases from the entire facility, and determining there has been no “net” emission increases. This process is called “netting.”
The George W. Bush administration EPA issued a 2006 rulemaking proposal concerning so-called “project netting.” It recognized the need to amend current EPA regulations, by adopting new language to allow a facility to consider emissions decreases from a project that would relieve the facility operator from the need to consider contemporaneous pollution increases from the entire facility. EPA and others have called this concept “project netting.”
This approach ignores pollution increases occurring from the whole facility, and thereby reduces the prospect that a facility operator will find there was a significant net emissions increase on paper, even though there are significant pollution increases in the real world. NRDC and others commented that the 2006 Bush proposal squarely violated the Clean Air Act and governing caselaw, because it unlawfully ignored contemporaneous emissions increases happening from the entire facility. The Bush proposal made it easier for significant pollution increases to evade controls.
EPA never finalized the 2006 Bush rulemaking proposal. Notably, the head of the Trump EPA air office, former industry lawyer, Bill Wehrum, also headed the Bush EPA air office when that 2006 rulemaking proposal was issued but never finalized.
Today’s Pruitt memorandum bypasses notice-and-comment rulemaking to finalize the rollback in the Bush 2006 “project netting” proposal in the form of a “guidance document.” The Pruitt memorandum even re-names the “project netting” loophole, because the Trump EPA undoubtedly realizes “project netting” squarely contradicts current EPA regulations that Pruitt’s memorandum purports to be interpreting.
Like the never-finalized Bush EPA rulemaking proposal, the Pruitt memo makes it much easier for significant air pollution increases to evade controls. Today’s memorandum represents unlawful final agency action that may be challenged in the U.S. Court of Appeals for the D.C. Circuit.
The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 3 million members and online activists. Since 1970, our lawyers, scientists, and other environmental specialists have worked to protect the world's natural resources, public health, and the environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, San Francisco, Chicago, Bozeman, MT, and Beijing. Visit us at www.nrdc.org and follow us on Twitter @NRDC.