Known as the "startup, shutdown and malfunction" exemption, the loophole allowed major industrial polluters to exceed emissions limits whenever they started up, shut down, or "malfunctioned." For years, many major polluters operated in startup, shutdown and malfunction routinely, making a mockery of their limits and spewing vast quantities of excess pollution into nearby communities.
Representing national and regional environmental organizations as well as community groups – including Sierra Club, Environmental Integrity Project, Louisiana Environmental Action Network, Coalition for a Safe Environment and Friends of Hudson – Earthjustice successfully challenged the loophole in the United States Court of Appeals for the District of Columbia Circuit. The Court vacated the loophole as flatly unlawful, providing much needed relief to Earthjustice's clients in the Gulf Coast, Los Angeles, upstate New York, and across America.
Eager to preserve the loophole, the American Chemistry Council, American Forest & Paper Association, American Petroleum Institute, National Petrochemical & Refiners Association, and the U.S. Chamber of Commerce asked the Supreme Court to review the D.C. Circuit's decision. On March 8, the Supreme Court denied their request.
"We're pleased that the court has finally put an end to the litigation," said Earthjustice attorney Jim Pew. "This air pollution exemption has caused terrible suffering in thousands of communities. No one disputes that it's illegal. Under the Obama administration, EPA has already committed to rethink this loophole, and we look forward to working with the agency to bring relief to overburdened communities as soon as possible."