Judges Look Askance at EPA Hand-Off on Permitting

WASHINGTON (CN) — Environmentalists warned the D.C. Circuit on Monday that air quality will suffer across the country if the court does not stop the Trump administration from giving states permitting power for power plants and refineries. 

Flames and smoke emerge from the Philadelphia Energy Solutions Refining Complex in Philadelphia on June 21, 2019. (AP Photo/Matt Rourke)

Representing the Sierra Club, Earthjustice attorney Gordon Sommers said in oral arguments that the Environmental Protection Agency created entirely new legal rational in issuing the guidance last year.

In issuing new guidance rather than a formal rule change, Sommers said the agency “created discretion out of whole cloth,” giving states safe harbor to violate national air-quality standards.

Senior U.S. Circuit Judge A. Raymond Randolph pressed Sommers to concede that not every state permit will boost pollution levels, but Sommers emphasized the potential for permits to harm neighboring states, since pollution travels downwind.

“We’re not challenging that the number is a little too high or a little too low,” Sommers said referring to EPA standards for evaluating pollution impact levels. “It’s the fact that there is a number at all.” 

The Justice Department is urging the panel to dismiss the case for lack of jurisdiction because the actual permitting occurs at the state level. 

“Here everything is written in the form of suggestions and encouragement,” Justice Department attorney Brian Lynk told the appeals court. 

The argument seemed to hold little sway, however, with Randolph, a George H.W. Bush appointee.

Randolph said he thought it odd that any challenge to the change by the EPA would be fought out permit by permit in the lower courts, but Lynk disagreed, saying the EPA is authorized by Congress to let states have permit-issuing power. 

The lawyer also appeared to strike out in addressing vagueness concerns.

Explaining the guidance’s language regarding how states are supposed to study possible polluting sites on a case-by-case basis, Lynk said the guidance was discretionary and “not prescriptive.”

“Not only wasn’t it prescriptive,” Chief U.S. Circuit Judge Merrick Garland shot back, “it wasn’t descriptive.” 

Judge Randolph also voiced frustration with Lynk’s explanation, saying the government was not revealing the full situation to the court.

Asked by Randolph how predictive the EPA air models are in assessing pollution from a site planned for construction, Lynk said the agency uses the same models for multiple assessment purposes. 

“Are they perfect? I don’t think I would ever say that,” the Justice Department attorney said.

Sommers urged the court to act swiftly and block the EPA guidance rather than have the battle over individual permits rage in state courts.

“This is the EPA’s last word in the process,” he said.

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