Trump Change to Pollution Rules Survives New Jersey Appeal

A federal appeals court said the government did its due diligence in a move that the Garden State predicts will be a boon to neighboring polluters upwind of it.

Total refinery site in Port Arthur, Texas. (Guillaume PERRIN, Total, via Courthouse News)

WASHINGTON (CN) — A Trump appointee fired off a blistering dissent Friday after the D.C. Circuit entertained an environmental regulation challenge from New Jersey and then promptly quashed it on the merits.

“Even though courts owe states ‘special solicitude’ in EPA emissions cases, this solicitude doesn’t cover unknown injuries inflicted by unknown companies at some unknown time in the possibly distant future,” U.S. Circuit Judge Justin Walker wrote.

Rather than dismissing the case on the merits, as the court did today, Walker said his colleagues should not have let New Jersey’s speculative challenge against the Environmental Protection Agency out of the gate.

“To be sure, if New Jersey believes what it says — that the EPA’s rule goes too easy on polluters — then New Jersey may well decide down the road to impose additional requirements on in-state polluters,” Walker concluded. “But absent a record containing more specific evidence than what we have here, New Jersey’s decision will be based on the state’s best guess about the effect of those additional requirements — the type of speculation that is often enough for legislators, but not enough for courts applying the elements of Article III standing.”

Writing for the majority, the Clinton-appointed U.S. Circuit Judge Judith Rogers was a bit more indulgent of, if not sympathetic to, New Jersey’s claims.

“The record confirms that EPA engaged in reasoned decisionmaking,” Rogers wrote.

Representatives for New Jersey declined to comment Friday on the appeal it lodged after the EPA proposed changes in December 2019 to the federal permitting requirements, as well as pollution-control technology, on “new and modified major stationary sources” of air pollution, known in the vernacular as “new sources.”

Per the change, the EPA said entities like smelters, power plants and refineries would only have to report a modification and undertake the required recordkeeping if they are releasing 50% of the applicable significance level for a regulated pollutant.

Rejecting the claim by New Jersey that such a revision is capricious, Rogers said the agency offered “a reasoned explanation for its 50 percent trigger.”

“Petitioner does not identify any contradictory record evidence or objections that EPA failed to consider,” Rogers added. “In these circumstances, EPA could reasonably determine that the 50 percent trigger ‘will capture projects that have a higher probability of variability and/or error in projected emissions.’”

Walker summed up the Garden State’s case rather bluntly: “In other words, pollution might reach New Jersey from a company that might have hidden a major change’s pollution from the EPA, which might have denied a permit for the major change that might have gone undetected.

“However, I cannot assume, and New Jersey has not shown, that the third step above — the EPA’s rule will cause injurious underreporting of undetected major changes — is a ‘certain[ty],’ a ‘predictable effect,’ or a ‘substantial risk.’”

The third member of the panel, Chief U.S. Circuit Judge Sri Srinivasan, sided with Rogers.

Representatives for the Department of Justice did not return a request for comment.

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