EPA Let State Whiff on Pollution Controls

PHILADELPHIA (CN) - The U.S. government improperly gave Pennsylvania approval to let power plants escape emissions controls, the Third Circuit ruled Tuesday.

Under the Clean Air Act, states must limit emissions of gases such as sulfur dioxide and nitric oxide that create haze and obscure visibility.

Aging emitters pose a unique problem. States usually require these operators to retrofit their facilities or explain why costs so outweigh benefits that a retrofit is infeasible.

When Pennsylvania identified 34 plants that fell under the standards, however, it exempted all of them from the retrofitting requirements.

The commonwealth argued that it could better control emissions under a cap-and-trade system than by subjecting the factories to burdensome costs.

When the Environmental Protection Agency approved Pennsylvania's plan in 2014, the federal agency drew protest from Sierra Club, the National Parks Conservation Association and the Clean Air Council.

At a hearing before the Third Circuit in April, these conservation groups accused the EPA of blindly acceding to the state's claims that nothing could be done to fix the old factories.

Though the EPA argued that any mistakes were "harmless," a three-judge panel disagreed Tuesday.

The 36-page opinion slams the agency as having "arbitrarily approved" Pennsylvania's alternative cap-and-trade plan that bypassed retrofitting.

The plan put forth by Pennsylvania failed to "identify or describe the upgrades considered or explain why these controls were rejected," Judge Thomas Vanaskie wrote for the court.

"Similarly, the EPA has failed to explain ... how it could meaningfully evaluated Pennsylvania's analysis described in such conclusory fashion," Vanaskie added.

The Pennsylvania plan that the EPA approved categorically "states that upgrades and combinations were considered," but the panel said "we cannot discern from the administrative record the specifics of Pennsylvania's analysis or why it rejected certain upgrades or combinations."

Indeed, the EPA acknowledged Pennsylvania's failure of its own cost-effectiveness analysis but nonetheless approved its plan without explanation.

The court remanded the case back to the EPA and vacated the 2014 approval.

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