D.C. Circuit Nixes Inconsistent Pollution Rules

(CN) - The EPA cannot set more lenient pollution regulations in the 6th Circuit, due to an adverse ruling by that court, but keep the more stringent requirements in other jurisdictions, the D.C. Circuit ruled.

Under the Clean Air Act, each major source of pollution must obtain an operating permit for a fixed term imposing emission limitations, and monitoring requirements.

Multiple pollutant sources may be considered a single stationary source if they are "adjacent," which may not simply depend on the physical distance between the sources, but also their interrelationship.

The 6th Circuit found the EPA's definition of "adjacent" unreasonable in a 2012 ruling, Summit Petroleum Corp. v. EPA.

"EPA's determination that the physical requirement of adjacency can be established through mere functional relatedness is unreasonable and contrary to the plain meaning of the term 'adjacent,'" the 6th Circuit ruled.

The EPA therefore changed its application of the Clean Air Act in accordance with the appellate court's ruling, but only within the 6th Circuit's jurisdiction, which includes Kentucky, Michigan, Ohio, and Tennessee.

The National Environment Development Association, an association of resource extractors and manufacturers, sued the EPA for inconsistently applying pollution regulations, and putting facilities outside the 6th Circuit's jurisdiction at a competitive disadvantage.

The D.C. Circuit agreed with the association that that "causes competitive injury to petitioner's members located outside of the 6th Circuit."

Under the EPA's own regulations, it is required to "maintain national uniformity in measures implementing the Clean Air Act, and to 'identify and correct' regional inconsistencies by 'standardizing criteria, procedures, and policies,'" Judge Harry Edwards wrote for the three-judge panel.

"Any problems that EPA now faces as a result of petitioner's action are attributable to the agency's decision to issue a directive that is plainly contrary to the agency's own 'Regional Consistency' rules," the 19-page ruling states.

The court said it need not decide whether the Clean Air Act allows the EPA to adopt different standards for different parts of the country.

While an agency may refuse to follow the adverse ruling of a particular circuit court, so as to prevent one court from deciding the law for the entire nation, "an agency may not refuse to acquiesce if doing so violates its own regulations," Edwards said.

However, the court noted that its ruling did not require the EPA to lower pollution standards nationwide.

Rather, the agency could revise its regulations explicitly to require aggregating emissions from multiple interrelated facilities, rather than just "adjacent" ones, or it could change its uniformity regulations to account for circuit splits.

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