Last week, Trump’s EPA convinced the D.C. Circuit Court of Appeals to put a hold on a case brought by industrial polluters and their state allies that challenged a 2015 Clean Air Act rule eliminating “startup, shutdown, or malfunction” (SSM) loopholes that allow fossil-fuel facilities to ignore pollution limits. The hold is likely a ploy by the Trump administration to either weaken or scrap the clean air protections to placate the suing fossil fuel interests - who are looking to avoid accountability for their unmitigated air pollution into surrounding communities. Sierra Club and our allies, however, will fight them every step of the way.
Trump has recently used this tactic on a number of other important public health protections. Ignoring overwhelming research from medical scientists, doctors, and public health advocates, Trump asked the courts to put a hold on the mercury rule, smog standards, water toxics rule, and methane protections. These science-based protections against fossil fuel pollution took years to research and formulate in order to adequately protect families across the country, but they’ve now been left in limbo, just like the SSM rule.
The SSM rule is an important public health protection that holds polluters accountable for massive pollution bursts that disproportionately impact low-income communities and communities of color who live around industrial plants. For far too long, polluters in certain states have taken advantage of SSM loopholes that allow unlimited amounts of harmful air pollution to be spewed into neighboring communities during regularly occurring startup, shutdown, or malfunction events.
Decades of work by community groups, environmental justice organizations, and legal advocates finally paid off in May 2015 when EPA required 36 states to fix the unlawful loopholes in their state rules that either ignore pollution during SSM events (exemptions) or let pollutions off the hook for legal consequences for harmful emissions (affirmative defenses).
Reopening the SSM rule, which underwent two public notice and comment periods since it was proposed in 2013, flies in the face of Pruitt’s lip service to regulatory certainty, as well as national consistency. The 2015 SSM rule required states to fix the unlawful loopholes by proposing revised rules to EPA by November 22, 2016.[1] Now two years into the process, states have invested time and effort into revising their rules, and EPA has proposed to approve several proposals in the last few months.[2] Of course, many states did not have to revise their rules because they did not provide polluters with unlawful loopholes.
Any action by the Trump EPA to roll back the SSM rule’s public health protections would not stand up in court. Although agencies can change positions under a new administration, they can only do so where the agency has some discretionary wiggle-room in its obligations. The law underlying the SSM rule prohibiting exemptions and affirmative defenses, however, is compelled by the Clean Air Act itself,[3] meaning that EPA does not have the power to simply change its mind. Thus, should the Trump EPA try to revoke the rule in whole or in part, such a revision would conflict with the bedrock principles of the Clean Air Act.
The Trump review of the SSM SIP Call will be another botched failure of his Administration. In the meantime, the Sierra Club will continue working with a coalition of environmental organizations and grassroots environmental justice groups to hold Trump and states accountable to the SSM rule’s deadlines, take enforcement actions against polluters who harm communities, and stand ready to defend any attempt to rollback the SSM rule protections.
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[1] 80 Fed. Reg. 33,840, 33,840/2 (June 12, 2015).
[2] See, e.g., 82 Fed. Reg. 16,770 (Apr. 6, 2017) (proposing to approve removal of exemptions from Montana SIP); 82 Fed. Reg. 13,084 (Mar. 9, 2017) (proposing to approve removal of affirmative defenses from Arizona SIP); 82 Fed. Reg. 20295 (May 1, 2017) (proposing to approve removal of affirmative defense from Kern County, California SIP).
[3] Automatic and discretionary exemptions violate the bedrock principles of the Act that SIPs must contain “enforceable emission limitations,” 42 U.S.C. § 7410(a)(2)(A), which must apply on a “continuous
basis.” Id. § 7602(k); Sierra Club v. EPA, 551 F.3d 1019, 1027-28 (D.C. Cir. 2008). Affirmative defenses are inconsistent with the Clean Air Act because the Act gives citizens the right to have a court determine whether violators should be penalized for not taking reasonable precautions to avoid upset events that cause terrible impacts on the surrounding community’s quality of life and well-being. As recently confirmed by the U.S. Court of Appeals for the D.C. Circuit, it is the courts that have jurisdiction to determine the civil penalties that apply in judicial proceedings brought against any entity that violates “an emission standard or limitation under this chapter,” 42 U.S.C. § 7604(a)(1). NRDC v. EPA, 749 F.3d 1055, 1063-64 (D.C. Cir. 2014).