Trump’s New Use of Exemptions to Aid Steel Faces Legal Hurdles

The Trump administration has tapped new forms of relief from federal pollution mandates to boost the domestic steel industry, prompting lawsuits from environmental and community advocacy groups that will test the limits of clean air law.

President Donald Trump spent this year pushing domestic steel as a priority for exemptions from air pollution deadlines, part of an effort to rebuild the flagging industry that also includes high tariffs on imports of the product. But the fast-tracking of that relief is reliant on previously unused provisions of the Clean Air Act.

“No president has ever used this before, so it’s hard to say what exactly to expect” in court, said James Pew, an attorney at Earthjustice, a non-profit that is challenging EPA’s steel mill exemptions at the US Court of Appeals for the District of Columbia Circuit.

The Trump administration used two kinds of exemption provisions for steel. For steel mills, the EPA issued an interim final rule using a carve out from Section 112 of the Clean Air Act, which governs National Emission Standards for Hazardous Air Pollutants. The EPA is able to reconsider a rule if petitions raise serious concerns over the feasibility of meeting the standards.

The second exemption, given by the White House to facilities that create the coal-based fuel coke to make steel, is part of the same Section 112. This provision says the president can grant emission rule exemptions if it’s determined that “the technology to implement such standard is not available and that it is in the national security interests of the United States to do so.”

The administration says unwinding emission limits for steel and other heavy industry is a matter of national security and technology availability concerns. Steel manufacturing facilities are the most recent operations to be granted exemptions, joining coal plants and chemical manufacturers that also received deadline reprieves delaying their hazardous air pollutant rule compliance by two years.

“Iron and steel production is essential to supporting the United States’ national infrastructure and security needs, particularly for applications in the defense industry, homeland security, and critical infrastructure,” the EPA said in a statement.

Green groups critical of industrial deregulation insist that communities near heavy-emitting facilities that are already vulnerable to health risks from pollution will pay the price of these exemptions, which rest on the alleged faulty and unlawful use of the Clean Air Act.

Residents of those communities and environmentalists sued the Trump administration in October over its proclamation exempting chemical manufacturers from hazardous air rules for two years, arguing in their lawsuit that the move “grossly exceeds the bounds” of exemption authority.

Communities Paying the Price

Exemptions offer quick relief to industry. But the formal, lengthier process of rolling back air rules completely have been on Trump’s to-do list since the early days of his administration.

The regulatory agenda released in August lists EPA priorities such as unwinding regulations for coal plants, rolling back vehicle emissions limits, and doing away with the greenhouse gas endangerment finding underpinning limits on pollution.

Neighborhoods at the edge of facilities like US Steel’s Clairton Coke Works near Pittsburgh have been in the top percentile of nationwide soot pollution, according to Matthew Mehalik, executive director of the Breathe Project, which advocates for cleaner air in southwestern Pennsylvania. He says the Trump administration’s exemptions will immediately harm people already exposed to higher amounts of pollution.

“All that it’s doing is creating a shield for any pollution and harmful activity that really can’t be justified on good government grounds,” Mehalik said.

These communities were also given little input in the interim final rulemaking process, according to petitioners led by Earthjustice challenging EPA’s steel mill final rule at the DC Circuit.

“Trump’s own EPA has concluded that the extension isn’t necessary,” said Pew. “But even if you go beyond that, the idea that technology isn’t available to implement this rule, really doesn’t make any sense when you think about how rudimentary and easy these standards are to comply with.”

A Shield for Steel Emissions

Steel and aluminum tariffs, too, have been touted in the US national security and domestic industry push alongside deregulation. Trump called upon Section 232 of the 1962 Trade Expansion Act to justify his steel tariffs, which is a section that governs imports affecting national security.

These efforts are a boon to the steel industry, according to American Iron and Steel Institute (AISI) president and CEO Kevin Dempsey.

Reconsidering air rules and extending compliance deadlines for steel “will allow EPA to carefully develop revised regulations that are based on accurate data and reasonable assumptions,” Dempsey said in a statement, noting that section 232 tariffs have also “worked to stabilize the domestic steel industry, protect national security and facilitate billions of dollars in investments.”

But some consumers and industry stakeholders are raising concerns that tariffs are actually hurting consumers, despite administration assurances that the economy has been given a boost. Exemptions and deregulation could be a move toward easing some of those doubts.

“The Section 232 tariffs have no requirements that U.S. steel producers invest in new capacity or in the specific types of steel products American manufacturers actually need,” said Paul Nathanson, executive director of the Coalition of American Metal Manufacturers and Users, an organization that advocates for US manufacturers to have reliable, competitively priced steel.

In a statement, Nathanson said it’s “clear the administration is looking for ways to expand domestic steel capacity to respond to these market pressures.”