California Loses Challenge to Pollution-Sorting Memo

WASHINGTON (CN) – Casting an EPA memo that announced the policy as “all bark and no bite,” the D.C. Circuit rejected a lawsuit Tuesday from California and environmental groups challenging the EPA’s new scheme for classifying sources of air pollution.

William Wehrum, assistant administrator of the EPA’s Office of Air and Radiation, pronounced the policy last year in a memo that purports to supersede one issued in 1995.

The original policy involved pollution sources deemed by the EPA as a “major source” subject to the strictest regulation. It held that, once the deadline passed for the source to take steps to reduce its emissions, the agency could not drop the source down into the more permissive “area source” category, even if the source reduced its pollution levels.

Wehrum’s memo meanwhile authorizes the EPA to reclassify a source of air pollution if it dips below the threshold for the category into which it was originally placed.

California and several environmental groups, led by California Communities Against Toxics, filed suit in Washington, saying that Wehrum violated notice and comment rules and misinterpreted Clean Air Act requirements.

But the D.C. Circuit ruled 2-1 Tuesday that Wehrum’s memo is not a final rule subject to court review because it “does not have a single direct and appreciable legal consequence.”

Writing for the majority, U.S. Circuit Judge Robert Wilkins noted that the memo carries no penalties for noncompliance, thus entities regulated as major sources cannot rely on the memo in any proceeding before the agency and state permitting authorities.

“In other words, as [the EPA] concedes, although the Wehrum memo forecasts EPA’s position as to section 112, it has no independent legal authority,” wrote Wilkins, who was appointed to the bench by President Barack Obama.

Wilkins contrasts the art of analyzing agency actions with reading novels by James Baldwin. Whereas “a thematic reading of ‘Giovanni’s Room’ is sure to inform such a reading of ‘The Fire Next Time,’ and vice versa,” the 22-page opinion says this is not the case when parsing agency action “because few, if any … are governed by the exact same combination of statutes and regulations.”

Under federal law, a source of pollution is classified as a major source if it emits 10 tons of one pollutant per year, or 25 tons of a combinations of pollutants over the same period. Area sources emit less and are subject to less strict regulations.

Wilkins noted those wishing to challenge the policy still have “clear statutory avenues” to do so.

In a 16-page dissent, U.S. Circuit Judge Judith Rogers, a Clinton appointee, said Wilkins downplayed the effects of the memo, which under the court’s precedent is just the type of agency action that courts can review.

“Through the Wehrum memorandum, EPA has instructed its employees that the plain text of the [Clean Air Act[ includes no temporal limitation on the reclassification of ‘major sources,'” Rogers wrote. “By publicly announcing an unequivocal statement that the plain text of the CAA ‘compels’ its conclusion, EPA has given states their ‘marching orders’ to allow reclassification of major sources. And states have heeded EPA’s direction.”

Tomas Carbonell, an attorney with the Environmental Defense Fund who worked on the challenge to the memo, vowed Tuesday to “keep fighting to close” what he called a damaging loophole in air-quality standards.

“Today’s disappointing decision does not mean that the court agrees with EPA’s rationale for creating this toxic loophole – only with the agency’s argument that it should be challenged through a different legal forum,” Carbonell said in a statement. “In fact, the court expressly said the EPA’s memo has no legal effect – that it is ‘all bark and no bite.'”

A representative for California Attorney General Xavier Becerra similarly said the state has work left to do on challenging the EPA’s policy.

“We will continue to advocate for strong regulatory programs that protect the public and the environment from harmful air toxics,” the representative said in a statement.

%d bloggers like this: