Posted by Jonathan Adler:
Yet *Another* Bush EPA Air Rule Goes Down:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229704473
The Bush Administration's EPA has had a hard time defending it's air
pollution regulatory reforms in federal court (as I've [1]noted
before). Today, yet another regulation went down in (another case
styled) [2]Sierra Club v. EPA. The majority opinion by Judge Rogers,
joined by Judge Tatel, begins:
Petitioners challenge the final rules promulgated by the
Environmental Protection Agency exempting major sources of air
pollution from normal emission standards during periods of
startups, shutdowns, and malfunctions (�SSM�) and imposing
alternative, and arguably less onerous requirements in their place.
Because the general duty that applies during SSM events is
inconsistent with the plain text of section 112 of the Clean Air
Act (�CAA�), even accepting that �continuous� for purposes of the
definition of �emission standards� under CAA section 302(k) does
not mean unchanging, the SSM exemption violates the CAA�s
requirement that some section 112 standard apply continuously.
Accordingly, we grant the petitions and vacate the SSM exemption.
Senior circuit Judge Randolph dissented. I hope to have more to say
about the opinion later.
Meanwhile, the EPA [3]ruled yesterday that power plant carbon dioxide
emissions should not be considered in the air pollution permit
approval process. I expect this decision will be the subject of
litigation or a notice-and-comment rulemaking in 2009, if not both.
References
1. http://volokh.com/archives/archive_2008_08_17-2008_08_23.shtml#1219156411
2. http://pacer.cadc.uscourts.gov/common/opinions/200812/02-1135-1154946.pdf
3. http://www.nytimes.com/2008/12/19/business/19coal.html?_r=1
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