Third Circuit Dumps EPA Approval of Weak Pennsylvania Clean Air Plan

The sun shines through clouds above a shale gas drilling site in St. Mary’s, Pa., on March 12. (AP Photo/Keith Srakocic, File)

PHILADELPHIA (CN) — An obvious loophole should have doomed Environmental Protection Agency approval of Pennsylvania’s plan to limit air pollutants, the Third Circuit ruled Thursday

“To receive such deference, the agency cannot reach whatever conclusion it likes and then defend it with vague allusions to its own expertise; instead, the agency must support its conclusion with demonstrable reasoning based on the facts in the record,” U.S. Circuit Judge Theodore McKee wrote for a three-judge panel. “When it fails to do so, an agency action is arbitrary and capricious.” 

Pennsylvania presented its plan to the EPA in 2016, saying coal-fired power plants that operate at 600 degrees or higher would have to emit less than 0.12 pounds of nitrogen per million British Thermal Units. 

In a petition with the EPA, the Sierra Club made its objections known. It said such plants are capable of producing emissions at 50% of the proposed limit, and that the plan did not require plants to report their temperature records. 

Despite the pushback, the EPA approved the plan in 2019 and denied the Sierra Club’s petition. 

The environmental group took to the Third Circuit, telling the federal appeals court in May oral arguments that the EPA had approved the plan arbitrarily.

Taking the group’s side Thursday, the Philadelphia-based court said the EPA failed to justify its approval and that the EPA was well aware of plant capabilities when it comes to emissions production.

“As the EPA’s own data demonstrates, a lower limit would clearly have been practicable. We realize, of course, that ‘mere’ data alone may not require a particular result,” McKee wrote. “However, the EPA is able neither to offer a reasonable justification for failing to require a stricter standard, nor to justify the standard it endorsed.”

The Sierra Club argued that there could be a loophole for polluters at these plants if they did not have to report their temperatures, allowing the plants to simply explain away the high emissions by saying they were below 600 degrees without having the proof to back it up.

At least one power plant in Cheswick, Pennsylvania, has been taking advantage of this loophole, the 30-page opinion notes.

“At night, when power needs drop and the plant can lower its operating temperatures, the emissions at Cheswick have not declined commensurately,” McKee wrote. “On the contrary, they have soared — up to 0.35 lb NOx/MMBtu — more than three times the daytime emissions. This resulted in the entire plant’s average emissions substantially increasing.”

This increase of emissions did not occur until the approval of the plan, McKee added.

As for the lack of temperature reporting within the plants, the ruling calls this reporting vital to the success of lowering emissions. McKee, a Clinton appointee, said the EPA was too quick to approve a plan with skimpy requirements.

“Because the SIP’s 600-degree threshold necessarily depends upon accurate temperature reporting, the EPA’s approval of such inadequate requirements on this record was arbitrary and capricious,” the ruling states, using the abbreviation for state implementation plan.

In vacating the EPA’s approval of the plan, the opinion says the agency must approve a revised plan within two years or enact a federal implementation plan.  

Charles McPhedran, an attorney with Earthjustice who represented the Sierra Club was pleased with the ruling. 

“The Third Circuit’s opinion finds in no uncertain terms that EPA was wrong to approve a weak and unenforceable Pennsylvania rule,” said McPhedran in a statement. “Weak emission limits at power plants have downwind consequences for air quality. EPA and Pennsylvania must comply with clean air rules and protect the public health.”

Zachary Fabish, attorney for the Sierra Club, lauded the ruling as well. 

“This decision is a strong rebuke to EPA, and a powerful reminder of the obligation EPA has to protect the public from smog-producing pollution from dirty coal-fired power plants,” said Fabish in a statement. “We hope that EPA will now take steps to prevent the harm to public health and the environment that this power plant pollution causes.” 

Attorneys for the EPA did not immediately respond to email seeking comment. McKee was joined in the opinion by U.S. Circuit Judges Robert Nygaard, a Reagan appointee, and Stephanos Bibas, a Trump appointee.

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