DC Circuit Strikes Down Trio of Ozone-Emission Loopholes

Several aspects of a Trump-era EPA policy were found to have let states skirt rules aimed at cutting harmful emissions.

Amtrak’s Pacific Surfliner train rumbles over a trestle at Gaviota State Park, California, around sunset in September 2020. (Courthouse News photo / Chris Marshall)

WASHINGTON (CN) — The D.C. Circuit agreed with conservationists Friday that the Clean Air Act contained several illegal loopholes that let states manipulate clean air requirements. 

Since 1990, the Clean Air Act has required states to demonstrate that they have met emissions-reduction milestones by fixed deadlines. Under a new standard the Environmental Protection Agency introduced in 2018, however, states did not need to show actual data. Instead, they could choose to prove their emission-reduction compliance by showing a few compliance measures from the plan that they have implemented. 

The EPA said that it was difficult, if not impossible, for states to comply with 90-day deadlines if it required actual emissions data. By the time the success of emission-reduction measures is determined, for example, the data could be stale. 

Contesting this 2018 implementation of the National Ambient Air Quality Standards for ozone, the Sierra Club faced off against the EPA at oral arguments in September.

The three-judge panel vacated three of the four provisions at issue Friday, giving a very narrow interpretation of the Clean Air Act that Earthjustice attorney Seth Johnson applauded in an interview this afternoon.

“Congress spoke clearly — that’s the whole of their reasoning,” said Johnson.

In addition to finding that the Clean Air Act statute provided no flexibility — data is required — the court took issue with another feature of the rule that let states skirt the milestone requirement by simply showing they have implemented measures previously predicted to reduce ground-level ozone. 

The court additionally struck down provisions of the rule that allow “interprecursor trading” where, rather than presenting hard data, states rely on computer simulations to estimate what reduction in an ozone-former pollutant is necessary based on a reduction of another such pollutant. 

In oral arguments, the Sierra Club said that the Clean Air Act was not meant to be flexible, and that Trump’s EPA had contravened congressional intent.  

The circuit court agreed. 

“EPA ‘cannot rely on its gap-filling authority to supplement the Clean Air Act’s provisions when,’ as here, ‘Congress has not left the agency a gap to fill,’” U.S. Circuit Judge David Tatel, a Clinton appointee, wrote for a three-judge panel.

Tatel was joined by U.S. Circuit Judge Katsas, a Trump appointee, and Senior U.S. Circuit Judge Harry Edwards, a Carter appointee.

“Although we are always interested in knowing how our sister circuits have approached the same question in other cases, it is this court that is interpreting the statute here, and this court has concluded that the statute is unambiguous,” Tatel wrote. “That ends the matter.”

The fourth provision that the court left intact allows states to choose between 2017 and 2018 as their starting point for measuring pollution reduction. Tatel wrote that “no single year can serve as a perfect stand-in for 1990” — the year when the amendments for protecting the ozone were added to the Clean Air Act, and the ability to choose a baseline year is grounded in the statute. 

“These loopholes have been around for too long,” Johnson said. “We can do better and we have to do better for the communities who face elevated pollution.”  Attorneys for the EPA declined to comment. 

%d bloggers like this: