- The Washington Times - Wednesday, August 20, 2008

A federal appeals court on Tuesday threw out a Bush administration policy that allowed only the Environmental Protection Agency (EPA) to monitor polluting industries, giving states broader authority over emissions control.

The ruling could affect more than 16,000 industrial polluters such as oil refineries, power plants and factories across the country and was hailed by environmentalists as a victory for those seeking tougher restrictions for soot, smog, mercury and other pollutants.

“Today’s decision will give states back the tools they need to hold polluters accountable and help ensure that every one has clean, healthy air to breathe,” said Carl Pope, executive director of the Sierra Club, an environmental group.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled that an EPA regulation that blocked states from monitoring industry pollution “is contrary to the [Clean Air Act] statutory directive that each permit must include adequate monitoring requirements.”

The panel’s 2-1 decision in the case Sierra Club v. EPA gives states access to more information that could be used to prosecute polluters and marks the federal judiciary’s latest rejection of EPA policies.

EPA officials expressed surprise at the ruling, saying they did not know they were violating the Clean Air Act.

“When we issue our rules, we believe they fit within the applicable statutory framework,” EPA spokesman Timothy Lyons said.

The 1990 amendments to the Clean Air Act require industries that emit air pollution from stationary sources to obtain “Title V” operating permits from state and local authorities. The permits describe emission limits and require monitoring to “assure compliance with the permit terms and conditions.”

Several states tried to monitor the industries’ pollution by themselves but always ran afoul of the EPA’s authority under the Bush administration rule.

Mr. Lyons said he was uncertain how the EPA would respond to the court decision.

“We’re still assessing the implications of that decision,” he said. “We’ll determine the appropriate course of action once we complete that review.”

EPA attorneys had argued that allowing states to monitor and enforce Clean Air Act rules would create a patchwork of confusing laws for industries, adding that states might impose new regulations never intended by the Clean Air Act.

In their majority ruling, Judges David B. Sentelle and Thomas B. Griffith said the EPA has failed to properly monitor emissions regulations required by the Clean Air Act, giving the states a right to fill in where the federal government failed.

“At least for some inadequate monitoring requirements … EPA has offered nothing more than vague promises to act in the future,” the ruling said.

Judge Sentelle was appointed by President Reagan, and Judge Griffith by President George W. Bush.

In a dissenting opinion, Judge Brett Kavanaugh said states can issue permits for industries but should not control pollution requirements, which are set by the federal Clean Air Act.

The act “grants EPA the authority to determine whether state and local permitting authorities can impose additional monitoring requirements,” said Judge Kavanaugh, who also was appointed by Mr. Bush.

The ruling is not likely to have much impact on the District of Columbia but could affect major industries in Virginia and Maryland, said George Hawkins, director of the D.C. Department of the Environment.

“We don’t have many facilities of that sort,” Mr. Hawkins said.

Only 36 of the Clean Air Act’s Title V permits have been granted in the District, mostly for hotels and hospitals. The biggest Title V facilities are three power plants operated by Pepco and the federal government.

State environmental agencies in the Washington area were reviewing the decision Tuesday.

“We would have to evaluate it before making any comment about potential impacts,” said Bill Hayden, spokesman for the Virginia Department of Environmental Quality.

The U.S. Circuit Court of Appeals for the District of Columbia in July struck down the Bush administration’s Clean Air Interstate Rule, ruling that the EPA overstepped its authority in creating a “cap and trade” market for pollutants that cause respiratory illnesses.

In February, the same appellate court quashed the EPA’s decision to no longer list mercury as a power-plant pollutant.

Last year, the Supreme Court ruled that the EPA violated the Clean Air Act by refusing to limit emissions of carbon dioxide and other greenhouse gases.

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