On Tuesday, the U.S. Court of Appeals for the District of Columbia threw out a Bush Administration rule that barred states from instituting stronger monitoring controls than those demanded by the EPA.

The case was brought by the Sierra Club and other environmental groups against the agency and American Petroleum Institute, among others. The court essentially decided that the federal government cannot hold states back from improving monitoring requirements for Title V permits when the EPA admits it is dragging its feet on a process of doing just that.

According to the majority opinion, the key to this case was that the EPA conceded previously that its monitoring requirements "may not be adequate to assure compliance, and should be improved."

Noted the opinion:

"EPA's about-face means that some permit programs currently in place do not comply with Title V because the agency failed to fix inadequate monitoring requirements before new permits issued, and prohibited state and local authorities from doing so. State and local authorities have issued more than 16,000 permits since the 1990 Amendments, and because stationary sources must renew their permits at least every five years, id. § 7661a(b)(5)(B), thousands more will issue while EPA completes its programmatic strategy. Many of those permits will fail to comply with the Act because their monitoring requirements are inadequate. If Congress meant that potentially thousands of permits could be issued without adequate monitoring requirements, then it would not have said "[e]ach permit . . . shall set forth . . . monitoring . . . requirements to assure compliance with the permit terms and conditions." Id. § 7661c(c) (emphasis added).

We can't have strong enforcement of our clean air laws unless we know what polluters are putting into the air," said Keri Powell, a staff attorney with Earthjustice, at a recent press conference.

The dissenting opinion was written by judge Brett Kavanaugh, a former attorney in the Bush White House, who noted that the EPA has already stamped all pre-existing monitoring requirements as adequate to ensure compliance. However, the other two judges agreed that the EPA concession as to the adequacies of its current monitoring requirements negated this line of reasoning.

The court said that this decision only applies when permitting authorities "supplement inadequate monitoring requirements when EPA has taken no action." Therefore, the decision is unlikely to affect other areas where the agency, and state and local governments have butted heads (e.g. California's CO₂ control laws). However, it will certainly affect companies seeking Title V permits in areas where the state and federal monitoring requirements currently differ. And it also means that the EPA will not be able to hold back state and local governments from implementing tougher environmental controls in those areas where the federal agency says it needs to improve, which includes a considerable range of topics.

Links

• Read the majority opinion for Sierra Club v. EPA (pdf)