EPA Lax on States in Bush-era Soot Rules, Court Says

The U.S. Environmental Protection Agency gave states too much flexibility in meeting soot standards, a federal court said in a ruling that could force some states to increase pollution-control efforts.

The EPA applied the wrong section of the Clean Air Act, relying on general implementation standards instead of particle-specific requirements, U.S. Circuit Judge Karen Lecraft Henderson said in today’s 18-page opinion, which evaluated guidelines issued by the environmental agency in 2007, during the administration of President George W. Bush.

“We agree with the petitioners that EPA erred,” Henderson wrote on behalf of the three-judge appeals panel. The court sent the guidelines back to the EPA with instructions to re-craft them according to the more detailed requirements.

Alisha Johnson, an EPA spokeswoman, in a phone interview declined to comment and referred questions to the Department of Justice, which tried the case on behalf of the agency.

The Justice Department is reviewing the decision and had no further comment, Wyn Hornbuckle, a department spokesman, said in an e-mail.

The ruling will apply to previous soot standards set by the EPA, as well as to new ones issued last month, according to Paul Cort, an attorney for Earthjustice, a San Francisco-based environmental advocacy group, who argued the case on behalf of the Natural Resources Defense Council, the Sierra Club and other plaintiffs.

‘Tighter Controls’

“If a state can meet the standards within five years, then nothing really changes,” Cort said in a phone interview. “But now, those areas that need extra time are going to have to accept tighter controls.”

For example, if an area isn’t in compliance with soot standards within five years, requirements for pollution controls that now apply to coal-fired power plants annually producing 100 tons of emissions would extend down to plants generating 70 tons, according to Cort. “It’s going to sweep up smaller pollution sources,” he said.

Under the 2012 standards, compliance is required within five years from whenever the EPA issues rules for the new standards, which means the clock may start ticking in about two years, according to Cort.

The EPA evaluated compliance in 2005, so noncompliant areas within states passed the five-year mark in 2010 and would be subject to the more stringent standards, Cort said.

Removes Flexibility

The ruling takes away flexibility that would make it easier and more cost-effective for states to comply with soot standards, said Howard Feldman, director of regulatory and scientific affairs for the American Petroleum Institute, a Washington-based oil and gas trade group, which intervened in the case on behalf of the EPA.

“It’s an unfortunate decision,” Feldman said in a phone interview. “It’s going to increase costs on our economy.”

Feldman declined to offer an estimate of compliance costs, saying the problem exists in localities across the U.S. and is too diffuse for accurate expense measures.

The case is Natural Resources Defense Council v. Environmental Protection Agency, 08-01250, U.S. Court of Appeals for the District of Columbia (Washington).

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