A federal appeals court Friday rejected what it called a Bush administration attempt to “pull a surprise switcheroo” by weakening the government’s authority to monitor air pollution from power plants, refineries and factories.
The U.S. Court of Appeals for the District of Columbia annulled the Environmental Protection Agency’s revisions of air pollution monitoring requirements last year. The court’s action returns for the time-being a stricter, Clinton-era standard that allows EPA and states to require more monitoring from plants when they renew their operating permits every five years.
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 Ronald 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.”
The court’s ruling was in a suit brought by three environmental groups — the Environmental Integrity Project, the Natural Resources Defense Council and Earthjustice — challenging EPA’s new interpretation.
Eric Schaeffer, a former EPA civil enforcement chief who heads the Environmental Integrity Project, said the Bush administration had “abandoned the authority” that federal and state agencies had to require improved monitoring to find pollution that often escapes detection.
He said the court’s restores citizens’ right to demand constant monitoring of pollution from local power plants, refineries and factories “that allows you to know whether they’re complying with the law.”
‘What good is the law?’
“If you can’t tell whether someone’s violating the Clean Air Act, then what good is the law?” Schaeffer said. “It’s as if you put a cop on the road every 5 years to see if people are speeding — it’s that big of a problem.”
Representatives for industry groups with knowledge of last year’s settlement with EPA couldn’t be reached immediately for comment.
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.