DC Circuit Calls for More Pollution Control at Pulp Mills

In a 2-1 decision, the court ordered the Environmental Protection Agency to set limits on air pollutants that pulp mill combustion sources are known to emit.  

A pulp mill in Alabama. (Photo via David Mark/Pixabay)

WASHINGTON (CN) — Although certain toxins discharged from furnaces and kilns at pulp mills were not deemed dangerous in a list of substances the government monitors, the D.C. Circuit ruled Tuesday that they should have been considered harmful.

At-issue are 2001 national emission standards that require the Environmental Protection Agency to occasional evaluate the risk of chemicals emitting from pulp mills, where wood and other materials are turned into pulp that is usually used to make paper. The hazardous air pollutants include mercury and dioxins.

In 2015, the Sierra Club and other environmental advocacy groups sued the EPA in California federal court, claiming the agency’s review of emission standards for pulp mills was overdue. The court ordered the EPA to conduct the review, but new standards issued in 2017 did not set limits on air pollutants from pulp mill combustion sources.

The Louisiana Environmental Action Network and other groups, including the Sierra Club, asked the D.C. Circuit to review the 2017 agency rule.   

U.S. Circuit Judge Nina Pillard, a Barack Obama appointee, penned the court’s 21-page opinion Tuesday that remanded the case for the agency to set limits on pulp mill pollutants.

Lawmakers explicitly set out review periods for the EPA to update its guidelines, Pillard wrote, not intending for the agency to have a static definition of “emission standard.”

“Congress’ requirement that EPA must periodically review and revise as necessary its ‘emission standards’ is a mandate to address the adequacy of each emission standard on the books against the statutory demand of section 112(d)(2),” the ruling states, referring to the Clean Air Act. “The obligatory periodic review and revision of ‘emission standards’ thus must ensure that each source category’s standard imposes appropriate limits—not just on whatever subset of toxics the existing standard addressed, but on all the toxics the source category emits.”

Pillard also noted that the Clean Air Act expressly directs the EPA to review and revise emission standards as necessary every eight years, with the statutory deadlines underscoring that timeliness for the evaluation is essential. While the agency argued it should only update the standards when processes or control technologies are changed, the statue’s “language is to the contrary,” the judge wrote.

“The text, structure, and purpose of section 112(d)(6) make clear that Congress placed it as a check against what could otherwise be perpetual deferral of EPA’s acknowledged statutory obligation to control all hazardous air pollutants,” Pillard wrote. “This case confirms the practical wisdom of that choice.”

U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, joined Pillard in majority decision, which ordered the EPA to set limits on air toxins “that pulp mill combustion sources are known to emit but that EPA has yet to control.”

In a dissenting opinion, Senior U.S. Circuit Judge David Sentelle, a Ronald Regan appointee, said the majority “misses the point.” He said that under the Clean Air Act, emissions standards are defined as referring to specific toxins, not sources.

“The point is that this definition highlights that the Act is relatively unclear about what the term ‘emissions standards’ means,” Sentelle wrote.  

He added, “In its effort to adopt what it views as the best interpretation of the statute, the majority ignores this ambiguity and the resultant duty to defer to the agency’s interpretation.”

James Pew, an Earthjustice attorney who represents the Louisiana Environmental Action Network, said in a statement Tuesday that members of communities surrounding pulp mills badly need the protections offered by the Clean Air Act. It is immoral that the EPA tried to “shirk its duty to protect people from toxic air pollution,” he said.

“The pollution from the mills is so bad that people living nearby can smell it and can get sick from the fumes, and the long-term effects of exposure on health can be even more serious,” Pew said. “This decision will bring some relief for communities at last by requiring the EPA do its job and limit uncontrolled toxic pollution.”

The Justice Department did not respond to an email request for comment.

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