Setting Up Regulatory Fight, Court Rejects CA’s Air Pollution Suit

Smoke drifts away from a Shell Oil refinery April 1, 2004 in Martinez, California.  (Justin Sullivan/Getty Images)

A  federal appeals court in Washington, D.C. today rejected California’s legal challenge to the Trump administration’s plans to ease decades-old air quality regulations for power plants, oil refineries, steel mills, and other large industrial sources of toxic air pollution.

But the court’s decision is not a total loss for the state, and California’s attorney general is vowing further challenges to the environmental deregulation.

The legal tussle began with a 2018 federal Environmental Protection Agency memo detailing a new interpretation of the Clean Air Act and rolling back a policy that regulates the country’s largest polluters.

The courts said Tuesday that the memo isn’t the EPA’s final rule, so California cannot challenge it in court. But that also means that the EPA cannot enforce it as a regulation.

On June 25, EPA officials proposed formally codifying the memo. The court’s decision to spike California’s lawsuit ensures that this fight between California and the Trump administration will continue around that proceeding.

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California Attorney General Xavier Becerra brought the lawsuit. He argued that the rule change runs counter to the intention of the Clean Air Act and would risk Californians’ health by adding hundreds of tons of toxic air pollution each year.

In an emailed statement, a representative from Becerra’s office called the Trump administration’s plan “wrong and dangerous.”

While California’s top lawyers review the legal opinion, they will submit comments on the EPA’s proposed rule and “take any and all legal action as needed,” the statement read.

“Our work is not over,” it concluded. “We will continue to advocate for strong regulatory programs that protect the public and the environment from harmful air toxics.”

EPA policy established in 1995 that any facility considered a major source of toxins in the air remains subject to strict regulations, even after its operators install pollution controls. For this reason, lawyers call it the “once in, always in” rule.

Previously under the Clean Air Act, federal regulators consider a power plant, for example, a “major” source of pollution if it has the capacity to spew 10 tons a year of any individual cancer causing or health threatening pollutant, or 25 tons each year of a combination of toxins, including lead and benzene.

The Trump administration proposed eliminating the rule, saying that by allowing more lenient regulations, it intended to reward companies for investing in technology that reduces air pollution.

“We are pleased with the Court’s decision,” EPA spokeswoman Melissa Sullivan said in an email. “As a general matter, EPA will continue to provide regulatory relief and environmental protection while abiding by the rule of law.”

Bill Wehrum, former assistant administrator of EPA’s Office of Air and Radiation, wrote the memo proposing the rule change.

Wehrum, a former fossil fuel industry attorney, has resigned from the EPA. Congress was investigating his alleged  contacts with former clients that could benefit from the EPA’s deregulation efforts.

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