Tuesday, March 13, 2007

Sierra Club v. U.S. EPA Appeals Court CAA Ruling

Mar 13: In the U.S. Court of Appeals, D.C. Circuit, Case No. 03-1202. The Appeals Court said, "In this case, the Sierra Club challenges the Environmental Protection Agency’s air pollution standards for brick and ceramics kilns. Because most of the standards violate the Clean Air Act as interpreted by this Court in Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855 (D.C. Cir. 2001) (percuriam), and National Lime Ass’n v. EPA, 233 F.3d 625 (D.C. Cir. 2000), and because the remaining standards violate the Act’s requirements for 'work practice standards,' we vacate the standards in their entirety and remand for further proceedings consistent with this opinion."

In its decision the Appeals Court further noted, "For the foregoing reasons, we vacate the emission standards for both brick and ceramics kilns and remand for further proceedings consistent with this opinion. If the Environmental Protection Agency disagrees with the Clean Air Act’s requirements for setting emissions standards, it should take its concerns to Congress. If EPA disagrees with this court’s interpretation of the Clean Air Act, it should seek rehearing en banc or file a petition for a writ of certiorari. In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court." Additionally, Senior Circuit Judge Williams indicated he concurred "entirely with the court’s opinion," and included a note to the opinion regarding what he called a "paradox in the relationship between two key provisions of § 112 of the Clean Air Act."

According to a release from Earthjustice who represented Sierra Club, "This latest decision reflects a broader problem at EPA, an agency that under the Bush administration has persistently ignored the law, the courts, and public health by adopting standards that do not adequately limit toxic air pollution." Earthjustice attorney James Pew said, "This decision is not just about brick kilns. It is about an agency that thinks it is above the law, and chooses to ignore Congress, the courts, and the citizens who have called upon EPA to protect against this pollution. Hopefully, this decision will remind EPA that it exists to protect public health and the environment by implementing our environmental laws, not subverting them."

At issue were the highly protective requirements in the Clean Air Act's toxic provisions, which require EPA to set standards for entire industries that reflect the emission levels achieved by the cleanest plants that are currently in operation. Marti Sinclair, Sierra Club's air chair said, "We applaud the court's decision, and it's a good thing we have courts to review what this rogue agency is doing. Instead of fulfilling its mission to protect public health and the environment, EPA is doing its best to deny Americans the protection that Congress provided."

According to the Earthjustice release, brick kilns and ceramics kilns emit more that 6,000 tons of toxic chemicals into the air each year, including hydrofluoric acid, hydrochloric acid, and particulate matter containing toxic metals such as arsenic, chromium and lead, which can lead to cancer, respiratory damage and neurological and organ damage. They said, for many kilns, "EPA refused to require any limit on toxic emissions at all. For others EPA set standards that -- in direct violation of the Clean Air Act -- did not even purport to reflect the emission levels achieved by the cleanest plants in the industry."

Access the complete 20-page opinion (
click here). Access a release from Earthjustice with links to additional information (click here). [*Air]