EDF, Allies Urge D.C. Circuit to Close EPA Loophole for Toxic Air Pollution

(Washington, D.C. – February 8, 2019) Environmental Defense Fund (EDF) and a coalition of 10 other environmental, environmental justice, and public health organizations filed a brief with the U.S. Court of Appeals for the D.C. Circuit today as part of their effort to close a damaging new EPA loophole for toxic air pollution.

EDF and its allies filed a lawsuit in March challenging the loophole. Today they filed reply briefs in the case.

“This hastily created and unlawfully enacted loophole puts American families and communities at risk of exposure to more toxic, dangerous and cancer-causing pollutants such as benzene,” said EDF Lead Attorney Tomás Carbonell. “The Trump administration’s EPA should never have created this loophole, and should close it now.”

EPA’s new loophole applies to “maximum achievable control technology,” or MACT, standards for hazardous air pollutants under the Clean Air Act. These standards generally apply to large industrial facilities like refineries and chemical plants that emit high amounts of 187 dangerous or cancer-causing pollutants.

Those “major source” facilities had to comply with the MACT standards for as long as they operated – until January 2018, when EPA suddenly announced the loophole. Under this policy, thousands of industrial facilities across the country could be eligible to operate with weaker, or no, air pollution controls. An EDF report found at least 18 major facilities in the Houston area alone that are eligible to use the loophole.

Then-EPA Administrator Scott Pruitt created the loophole unlawfully – in a four-page memo issued without notice or public comment and without considering the damage to Americans’ health and the environment.

In today’s reply brief, the groups argue that the memo creating the loophole:

“[C]hanges a prior legislative rule, and decisively alters rights and obligations; it is consequently a final legislative rule, unlawfully issued without notice and comment … Furthermore, EPA has arbitrarily failed to address critical consequences of its decision.” (Brief, page 9)

Earthjustice, California Communities Against Toxics, Downwinders at Risk, Environmental Integrity Project, Hoosiers Environmental Council, Louisiana Bucket Brigade, Natural Resources Defense Council, Ohio Citizen Action, Sierra Club, and Texas Environmental Justice Advocacy Series are joining EDF in the lawsuit. The state of California is also challenging the loophole.