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Court Strikes Down Bush Administration Pollution Monitoring Loophole, Upholds Public's Right to Know

Throws out EPA rule that waived pollution monitoring requirements for thousands of factories and power plants
August 19, 2008

Washington, D.C. — 
A federal appeals court today struck down an Environmental Protection Agency rule that exempted major industrial polluters from accurately measuring dangerous emissions. The court held that EPA violated the Clean Air Act in allowing the largest air pollution sources to avoid monitoring, recording and recordkeeping of air pollution emissions needed to assure compliance with clean air laws. The EPA rule actually barred permitting agencies from requiring any of these activities in clean air permits.

Earthjustice challenged the 2006 EPA rule on behalf of the Environmental Integrity Project, Environmental Defense Fund, Natural Resources Defense Council and Sierra Club. The rule specifically prohibited permitting authorities -- predominantly state agencies -- from including stronger air pollution monitoring requirements in permits for approximately 18,000 major stationary pollution sources, even where needed to guarantee compliance with emission limits.

"This is a huge victory for everyone who breathes," said Earthjustice attorney Keri Powell who argued the case in court. "We can't have strong enforcement of our clean air laws unless we know what polluters are putting into the air."

"The Bush EPA went out of its way to overturn a system that required states to adequately monitor air pollution at power plants and factories. Instead, EPA actually outlawed states from requiring monitoring good enough to protect the health of their citizens.  EPA’s consistent polluter-biased practices have amounted to industry foxes having a house party in the henhouse,” said John Walke, Clean Air Director for the Natural Resources Defense Council.

The 2-1 decision came today from a panel of the United States Court of Appeals for the District of Columbia Circuit. The court ruled that the Clean Air Act "requires that '[e]very one' of the permits' issued to large factories and power plants must require adequate monitoring, and that EPA had failed to "read the statute" in taking a contrary view. 

“Today, the court slapped down EPA’s ‘see no evil’ approach to the Clean Air Act, which would have eliminated emissions monitoring required by law.  Responding to an outstanding argument by Earthjustice, the court understood that emission standards that aren’t monitored can never be enforced.  Today's opinion is only the latest in series of decisions that have thoroughly rejected EPA’s seven-year campaign to unravel the Clean Air Act." 

"The federal appeals court held that communities across America have the right to know the amount of air pollution discharged by thousands of industrial sources," said Vickie Patton, Environmental Defense Fund Deputy General Counsel. "The court reinstated bedrock public health protections undermined by what it properly called an EPA 'about-face,' and sharply admonished the Agency to carry out the nation's clean air laws."  

"Public health should be a top priority, not polluters' profits," said Sierra Club Executive Director Carl Pope. "Today's decision will give states back the tools they need to hold polluters accountable and help ensure that everyone has clean, healthy air to breathe.”

The court ruling impacts emission monitoring requirements for thousands of facilities subject to "Title V" operating permits.  The decision means that the public and air pollution enforcement agencies can now look forward to regular access to reliable monitoring data demonstrating whether large factories, power plants, cement kilns, incinerators and other facilities are polluting the air illegally.

Read the court's decision (PDF)


Contact:

Keri Powell, Earthjustice, (212) 791-1881, ext. 24, (917) 573-8853 (cell)
John Walke, Natural Resources Defense Council, (202) 289-2406
Eric Schaeffer, Environmental Integrity Project, (202) 263-4440
Vickie Patton, Environmental Defense Fund, 303-447-7215
Virginia Cramer, Sierra Club, (804) 225-9113