Bloomberg Law
Jan. 22, 2020, 5:27 PMUpdated: Jan. 22, 2020, 8:38 PM

Federal Court Upholds EPA’s Reversal of Toxic Air Policy (3)

Amena H. Saiyid
Amena H. Saiyid

The EPA can finally apply its new reading of a toxic air pollution policy that will allow some power plants and refineries to escape pollution controls, after a federal appeals court’s ruling on Wednesday.

The U.S. Court of Appeals for the District of Columbia Circuit rejected a petition by California and a Sierra Club-led coalition of environmental groups to reconsider the court’s August ruling that reversed the 1995 air permitting policy known as “once in, always in.”

The decades-old policy required power plants, refineries, and other industrial factories to keep running pollution controls even if their emissions of toxic air pollutants fell below mandated Clean Air Act thresholds.

The circuit judges asked to review the petition reaffirmed their earlier ruling that the January 2018 memo penned by Bill Wehrum, Environmental Protection Agency’s former assistant administrator for air and radiation, couldn’t be construed as a final agency action.

“We hold that the Wehrum Memo is not final agency action, and we dismiss the petitions for lack of subject matter jurisdiction under the Act,” wrote Senior Judge Laurence Silberman, an appointee of President Ronald Reagan, who joined Circuit Judge Robert Wilkins, an appointee of President Barack Obama, in rejecting the petition in August.

At the time, the two judges also deferred to Wehrum as the “principal adviser” to the EPA Administrator on Clean Air Act matters, adding that “nothing within EPA’s regulations provides us ‘reason to question his authority to speak for the EPA.’”

Judge Judith Rogers, an appointee of President Bill Clinton, dissented from the court’s order. She said the decision had “effectively rewritten” the Clean Air Act’s judicial review provision, “thereby abdicating this court’s responsibility to review an agency decision of national importance.”

Rogers took issue with the court’s earlier opinion that said the Wehrum memo would have no legal consequences.

“It articulates EPA’s new position on reviewing Title V permits. It dictates how agency officials will act. It alters the legal regime by advancing a new interpretation of the Clean Air Act. And it creates a new legal right by allowing major sources of hazardous air pollutants to reclassify as area sources, thereby easing regulatory restrictions on the emissions of hazardous air pollutants,” Rogers wrote.

Environmental groups were disappointed with the ruling, and leaned on Rogers’ dissent in responding to the decision.

Sierra Club’s Sanjay Narayan warned the EPA to expect a challenge if it finalizes the proposal that is seeking to codify the Wehrum memo.

“In the meantime, the court’s holding that no party can rely on the reasoning in the Memo should give pause to any industrial sources planning to increase their pollution before that rule is finalized,” Narayan, the Sierra Club’s managing attorney, wrote in an email to Bloomberg Environment.

The nonprofit Environmental Defense Fund, which was part of the coalition challenging the EPA policy, also said it would keep fighting the Trump EPA’s efforts to reduce Clean Air Act protections against toxic industrial air pollution.

“EPA’s own analysis shows that this loophole could allow thousands of facilities to opt out of life-saving pollution standards,” Tomas Carbonell, the Environmental Defense fund’s lead attorney and regulatory policy director, said.

Meeting Standards

The Clinton-era approach from the Environmental Protection Agency had required power plants, refineries, and other large industrial sources of toxic air pollution to meet the strictest standards under the Clean Air Act, even if they reduced their toxic emissions to below the threshold.

But the Trump EPA, in a January 2018 memo, allowed sources to avoid those stringent controls if they emitted less than the mandated thresholds. The agency’s memo triggered the lawsuit.

Under the Clean Air Act, the most stringent requirements to control toxic air pollution kick in for large industrial facilities that emit at least 10 tons per year of a single hazardous pollutant, or 25 tons of two or more air toxics.

The D.C. Circuit in August said the memo wasn’t a final agency action that could be challenged in court. Wednesday’s decision reaffirmed the court’s earlier ruling on grounds the petitioners were unable to show actual harm.

The EPA is in the process of codifying its policy changes into an actual rule, with a proposed rule (RIN 2060–AM75) that came out in June and a final rule expected next summer.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

The case is Calif. Cmties. Against Toxics v. EPA, D.C. Cir., No. 18-1085.

—With assistance from Ellen M. Gilmer.

(Updated with additional reporting throughout the story.)

To contact the reporter on this story: Amena H. Saiyid in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Anna Yukhananov at