Federal Court Confirms EPA’s Authority to End Loopholes Companies Use to Pollute Air with Impunity


The exemptions prevent communities from holding air polluters accountable for toxic emissions


On Friday, the U.S. Court of Appeals for the District of Columbia Circuit upheld key parts of a landmark 2015 Environmental Protection Agency (EPA) rule mandating over 30 states close loopholes polluters use to emit vast amounts of harmful air toxins during a facility’s start-up, shut down and malfunction (SSM). During those periods, in states like Louisiana, Michigan, and California, communities could live near industrial facilities emitting unchecked air pollution without consequence.

The court found the EPA had the authority to order states to bring their air regulations into compliance with the Clean Air Act and that it is illegal for polluters to evade civil penalties via an “affirmative defense” when they claim their facilities experienced malfunctions. The ruling rejected the EPA’s basis for compelling states to stop exempting polluters from obeying emission standards during SSM periods. However, the majority and dissent explained ways the EPA could permissibly direct states to close these exemptions.

The EPA’s 2015 decision came after years of community advocacy, including two court decisions rejecting the types of loopholes today’s ruling addressed. Still, loopholes remain in states like Texas, North Carolina, and Iowa. Many of the EPA’s protective policies against air pollution have similar loopholes. The EPA has taken a closer look at the legality of these loopholes since Earthjustice, and other groups, petitioned the agency to close them.

Seth Johnson, an Earthjustice attorney who represented Sierra Club in defending the EPA’s 2015 action, said the court’s ruling will help end certain loopholes that allow companies to release vast amounts of dangerous air pollution that causes severe health problems, like respiratory diseases such as asthma and cancer, and blights communities.

“It’s not just unconscionable that polluters escape consequences for these releases — it’s also illegal,” Johnson said. “It’s long past time for these illegal loopholes to be closed in all states and from all of EPA’s rules. Overburdened communities need immediate relief. We also appreciate that the decision upholds EPA’s important role in ensuring state pollution control plans comply with bedrock legal requirements. Though aspects of the court’s ruling disappoint us, we encourage EPA to follow through on the court’s explanation of ways it could proceed to close all the states’ loopholes legally.”

During SSM stages, companies often release high concentrations of toxic chemicals in a short amount of time. These companies are disproportionately sited in Black and Latino neighborhoods, and the chemicals they release into the air have severe health impacts. The loopholes shield industrial facilities like refineries from reporting emissions and paying fines, discouraging companies from upgrading their facilities to prevent SSM events.

Some states that allow the loopholes, like Texas, keep track of how much pollution companies emit during SSM events. In 2019, Texas-based companies reported 4,086 breakdowns, accidents and other SSM events which resulted in the release of more than 174 million pounds of illegal air pollution—an increase of 155 percent since 2015. Through the loopholes, most of those violations escaped without consequence.

Flaring at a refinery located next to homes in Wilmington, CA.
Flaring at a refinery located next to homes in Wilmington, CA. (Jesse Marquez)

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