Posted by Jonathan Adler:
Did Bush EPA's Loss Strike Down Clinton EPA Rule?
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229809898
An interesting aspect of [1]Sierra Club v. EPA, the Clean Air Act case
I [2]noted yesterday, is that the underlying regulation at issue was
adopted under the Clinton Administration. The Bush Administration made
some modifications of its own, largely affecting reporting and
enforcement of the rule, but the underlying "SSM" exemption (for
startups, shutdowns, and malfunctions) was created in 1994. Here's an
excerpt from the [3]Washington Post story on the decision:
The agency created the exemption in 1994, and Bush administration
officials broadened the interpretation of the provision over time.
This made it subject to judicial review, and a coalition of
advocacy groups including the Environmental Integrity Project, the
Sierra Club, the Louisiana Environmental Action Network, the
Coalition for a Safe Environment and Friends of Hudson challenged
the provision's legality in court.
"What they did is take a bad provision and turn it into an almost
complete barrier to enforcement," said Earthjustice attorney Jim
Pew, who argued the case on behalf of the coalition. "This was an
attempt to make all of the air-toxics laws unenforceable, and they
almost got away with it."
The SSM exemption's history created an interesting wrinkle in the
case. It was clearly too late for environmentalist groups to challenge
the rule directly, so they hitched on to the Bush Administration's
more recent interpretations to secure judicial review. Even so, it's
not so clear the court had jurisdiction to review the underlying rule
in this case. This was a key point in Senior Circuit Judge Randolph's
dissent:
According to Sierra Club, EPA�s rulemakings in 2002, 2003, and 2006
rendered enforcement of the 1994 startup, shutdown, and malfunction
regulations more difficult. Even if true, that could hardly have
amounted to agency �action� re-promulgating the 1994 regulations,
which is what § 7607(b)(1) requires as a prerequisite for judicial
review. After all, Sierra Club�s complaint is not that the 1994
regulations are now hard to enforce; it is instead that the 1994
regulations are invalid and always have been. The recent rules did
not alter the exemption for startup, shutdown, and malfunction
events. The new rules simply modified requirements for each
source�s plan regarding implementation of the duty to minimize
pollution during the exempt periods.
Thus, Randolph concluded, the Sierra Club could only challenge the
Bush Administration revisions, and not the underlying exemption. Based
on my initial reads, I think Judge Randolph is right. So, while I am
inclined to think the Sierra Club was correct on the merits, and that
the SSM exemption contravenes the Clean Air Act, I doubt the D.C.
Circuit had jurisdiction to consider and overturn the underlying rule.
References
1. http://pacer.cadc.uscourts.gov/common/opinions/200812/02-1135-1154946.pdf
2. http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229704473
3.
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/19/AR2008121903124.html?hpid=sec-nation
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