On Oct. 7, 2005, the U.S. Court of Appeals for the District of Columbia annulled the EPA's recent revisions of air pollution monitoring requirements. The court said the administration's attempt to “pull a surprise switcheroo” weakened the government's authority to monitor air pollution from power plants, refineries and factories. The action reinstates stricter requirements and allows the EPA and states to require more monitoring from plants when they renew their operating permits.

Writing for a three-judge panel, Judge David Sentelle said an EPA settlement last year with the utility and other industry groups on monitoring requirements contradicted the agency's 2002 interpretation of the Clean Air Act.

“The upshot of EPA's final interpretation ... is that state permitting authorities are now prohibited from adding new monitoring requirements,” wrote Sentelle, who was appointed to the court by President Reagan. “This flip-flop complies with the [law] only if preceded by adequate notice and opportunity for public comment.”

EPA spokeswoman Eryn Witcher said the agency was “pleased that the court is allowing EPA to address the procedural flaw in the rule by providing an opportunity for additional public comment on the agency's approach to monitoring requirements.”

Sentelle said the court can't allow EPA to justify limited public input by claiming its final regulations merely were a “logical outgrowth” of an earlier rulemaking process.

“Thus, we have refused to allow agencies to use the rulemaking process to pull a surprise switcheroo on regulated entities,” he wrote.