Yet One More Judicial Defeat for the Bush EPA; The D.C. Circuit Vacates Another Clean Air Act Rule

As the sun sets on the Bush administration, it is at least maintaining its seemingly unmatched record for turning the notion of judicial deference to administrative action on its head, as the D.C. Circuit has rejected yet one more EPA Clean Air Act rule. This time, the Court struck down EPA’s rule exempting startups, shutdowns, and malfunctions (SSM) from emissions standards under § 112 of the CAA.

As with some of EPA’s other judicial defeats, this one was based largely on the Court’s reading of the plain language of the CAA. The Court concluded that “EPA’s decision to exempt major sources from compliance with section 112 emission standards during SSM events is contrary to the plain text of the statute and arbitrary and capricious in any event.” The Court noted that § 302(k) of the CAA defines an “emission standard” as a requirement to “assure continuous emission reduction.” Thus, the Court concluded, Congress required continuous standards under § 112.

Anyone who operates facilities subject to the CAA knows that SSM events pose special challenges. In this context, it is noteworthy that the Court emphasized that EPA had not purported to act under § 112(h) of the CAA, which provides that a standard may be relaxed “if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission standard for control of a [HAP] (hazardous air pollutant).” 

It would be surprising if industry groups did not seek relief under § 112(h) at this point, though whether the Obama EPA will be interested is another matter.

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