Supreme Court Refuses to Hear Air Pollution Case


Victory for clean air advocates who fought air pollution loophole


Raviya Ismail, Earthjustice, (202) 667-4500, ext. 221 

The Supreme Court sided with community advocates by refusing to review a decision (09-495) by the United States Court of Appeals for the District of Columbia Circuit that closed a gaping air pollution loophole. The loophole, known as the “startup, shutdown and malfunction” exemption effectively allowed major industrial polluters to exceed emissions standards whenever they claimed that their equipment “malfunctioned.”

The community groups, represented by Earthjustice in this case against the Bush-era U.S. Environmental Protection Agency, had succeeded in closing the loophole with a win in federal court in December 2008. Following the D.C. Circuit’s decision, EPA did not seek Supreme Court review, but American Chemistry Council and other major industry groups, which had intervened in the case, did.

“We’re pleased that the court has finally put an end to this 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.”

The groups that brought the case, Sierra Club, Environmental Integrity Project, Louisiana Environmental Action Network, Coalition for a Safe Environment and Friends of Hudson, acted to protect their members and others who live in communities in the Gulf Coast, southern California, upstate New York, and across America that are subject to vast quantities of excess toxic pollution when refineries, chemical plants, and other industrial facilities exceed their emission standards as a result of alleged “malfunctions” as well as when operations startup and shutdown. During these events, toxic emissions can skyrocket, severely degrading air quality. And some facilities evade clean air protections by claiming that they are in “startup, shutdown and malfunction” mode during much of their operating time.

The loophole’s potential for abuse was on full display on Sept. 25, 2009, when news outlets reported on a fire caused by a malfunction at the Tesoro Energy Corp’s Wilmington, California refinery. What most news reports don’t detail is the fact that the fire burned for more than 6 hours. That’s several hours of fumes emitted from a 100,000 barrel-per-day refinery. The refinery produces gasoline, jet fuel, diesel fuels, petroleum coke and fuel oil.

Jesse Marquez, executive director for the Coalition for a Safe Environment, lives just three miles away from the Tesoro refinery. He was at the scene of the incident and said the malfunction began at 6 a.m. and for hours a noxious smell of crude oil and diesel fuel fumes filled the air. The refinery notified the elementary school a mile away of the fire but it did not inform residents. Not only did residents contend with poisonous emissions, the fire left soot on peoples’ cars and homes. The refinery eventually paid for the cost of cleaning homes and cars but did not reveal what public health risks occurred as a result of the hours-long exposure to these pollutants. Along with the Tesoro refinery, Wilmington –- just four square miles — is home to the ConocoPhillips and Valero refineries.

“Almost every week a refinery has a malfunction and equipment break down and almost every year there is a fire,” said Marquez. “Each of these refineries exposes our children to hundreds of tons of toxic pollutants every year. I am pleased with the Supreme Court’s decision because we need strict rules to regulate refineries and they must be held accountable when their violations of emission standards put the public in harm’s way.”

“Hopefully as a result of this decision, companies will take responsibility for accidents that expose their neighbors to dangerous pollutants,” added Eric Schaeffer, director of Environmental Integrity Project. “The Clean Air Act doesn’t excuse ‘accidental’ pollution, and neither should the U.S. Environmental Protection Agency.”

Citizens of the state of Texas are also among those who will benefit from the Supreme Court’s decision. With more than 250 industrial sites, Texas is home to the nation’s largest number of refineries, chemical and petrochemical plants in the nation. The state is also one of a few that tracks pollutants released during startup, shutdown, and malfunction periods: according to state records, thirty facilities emitted more than forty-five million pounds of toxins in just one year during these off-the-books periods.

“Startups, shutdowns and malfunctions create some of the highest volumes and worst toxic air pollution released by large industrial factories, and nearby communities suffer the horrible impacts of the chemicals dumped into their air supply,” said Neil Carman, clean air director for the Sierra Club’s Lone Star Chapter and a former Texas state refinery inspector.

In nearby Louisiana, there are some 20 million pounds of air toxics pumped into the air each year, with one part of the state given the dubious nickname “Cancer Alley.”

“This is not about numbers on a page,” said Marylee Orr, executive director of Louisiana Environmental Action Network. “This is about making the air healthy to breathe, communities quality of life better and that will help the economy. We thank the Supreme Court for protecting people’s health.”

Susan Falzon of Friends of Hudson represents residents living near or downwind the Lafarge cement kiln plant in Ravena, NY. She said residents have been subjected to regular startup, shutdown and malfunction emissions incidents that have gone on for years with no enforcement actions taken.

“The incidents are largely unpublicized and therefore the general public is unaware of this danger,” Falzon said. “We are fortunate that there have been no major mishaps but at the same time we have been exposed to a slow and steady series of so-called minor incidents. Closing this loophole is a victory for our communities.”

“The court made the right decision; the Clean Air Act requires continued compliance with its standards,” said Jane Williams, Chair of Sierra Club’s Air Toxics Task Force. “This loophole has been a get-out-of-jail free card for far too long for dirty industries.”

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