Feds Sued Over Lenient Emissions Standards as Virus Spreads

A flame burns at the Shell Deer Park oil refinery in Deer Park, Texas, in August 2017. (AP file photo/Gregory Bull,

HOUSTON (CN) — As research reveals a link between air pollution and Covid-19 death rates, environmental groups are challenging a new federal rule they say gives refineries and power plant operators a free pass for releasing mass amounts of toxins.

Pollutants from oil refineries and power plants spike when they are shut down and restarted as part of routine operations, or to protect their equipment when they are lashed by hurricanes and flooding.

The coronavirus pandemic has proven to be more disruptive to the energy industry than any storm.

As people across the globe abide by stay-at-home orders, keep their cars parked in their driveways and cancel Easter vacation plans, some oil companies are shutting down refineries in response to the drop in the demand for gasoline and passenger jet fuel.

The Sierra Club says it’s been found that in some instances, oil refiners emit more air pollution during these so-called “startup, shutdown and malfunction events” than they emit over the course of a year in their normal operations.

The environmental group says this is concerning in light of research showing people with underlying health problems like asthma, heart disease, high blood pressure, worsened or caused by air pollution, are more at risk of dying from Covid-19, as documented in a new study by the Harvard University T.H. Chan School of Public Health.

Environmentalists say a new U.S. Environmental Protection Agency rule further endangers Texans who live near industrial plants.  

The Sierra Club, joined by eight other advocacy groups, sued the EPA and Administrator Andrew Wheeler late Tuesday in the D.C. Circuit, a U.S. Court of Appeals that is the primary venue for challenges to agency regulatory decisions.

The groups claim the agency reopened a loophole, which had been closed by the Obama administration, allowing Texas power plants and refineries to emit unlimited amounts of pollution during their startups, shutdowns and malfunctions and shielding them from litigation in which judges can impose civil penalties for Clean Air Act violations.

“It may be inappropriate to impose a civil penalty on sources for sudden and unavoidable emissions caused by circumstances beyond the control of the owner or operator,” the EPA said in a summary of the rule change it published in the Federal Register in February to solicit public comments before the new regulations took effect March 9.

Critics complained to the EPA that the rule conflicts with federal courts’ exclusive jurisdiction, granted by Congress, to resolve Clean Air Act lawsuits, which can be filed by private citizens.

But the EPA said in its Federal Register summary the rule complies with the CAA because Texas plant operators can only have an “affirmative defense” against civil penalties if they can prove the excess emissions were beyond their control, they promptly notified regulators, they did everything possible to minimize the effect on air quality and they kept logs documenting their response to the event.

The documentation may also be an issue, environmental groups say, because the EPA recently waived some CAA compliance requirements for petrochemical plants and refineries, which the federal government has deemed essential businesses amid the Covid-19 pandemic.

In granting the waivers, critics say, the Trump administration caved to energy companies who said they may not be able to comply with the laws if plant workers were sickened by the virus and forced to stay home.

“It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws,” the Environmental Integrity Project wrote in a March 26 letter to the EPA.

Air Alliance Houston is also a plaintiff in the Sierra Club’s lawsuit. Its director Bakeyah Nelson said if Covid-19 triggers a wave of refinery shutdowns, the air quality along the Gulf Coast will worsen as it did when Hurricane Harvey hit the area in 2017.

“During Hurricane Harvey, when all the facilities started shutting down at one time because it was an emergency situation, that created a very high concentration of emissions,” she said in a phone interview.

Civil rights advocates say black people in Louisiana are dying from Covid-19 at much higher rates than other groups because many live near chemical plants and refineries where housing is cheaper.

Large populations of blacks and Latinos also live near the chemical plants and refineries clustered around the Houston Ship Channel and many suffer from pollution-related health problems that make them more susceptible to dying from Covid-19, health experts say.

The new EPA rule is raising the possibility that refiners will release more pollution into these areas as they shut down their operations.

“Before the Covid-19 outbreak, we already had people suffering from severe asthma, emphysema, and lung cancer in these communities, and now Trump’s EPA is trying to dump more pollution on us while we deal with the pandemic,” Suzie Canales, director of Citizens for Environmental Justice, said in a statement.

The EPA said it does not comment on pending litigation.

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