Oct 20, 2023 - Yesterday the Sierra Club and its allies moved to intervene in a federal lawsuit in the D.C. Circuit Court of Appeals to defend a critical EPA rule that will protect environmental justice communities from industrial pollution. The rule will eliminate loopholes from Clean Air Act operating permits that allow dangerous pollution from power plants, refineries and other industrial facilities during startup, shutdown, malfunction (SSM) and “emergency” events. EPA adopted the rule following Sierra Club and its allies’ years-long campaign to force the EPA to protect communities from this pollution.
Sierra Club has led this work since 2011, when it petitioned EPA for a rulemaking to eliminate SSM loopholes from state implementation plans (SIPs). We compiled compelling personal stories, gathered thousands of online comments, and organized “fly-ins” for our partners from around the country, resulting in the 2015 “SSM SIP Call Rule” that required 45 states and air districts to close these loopholes. Sierra Club intervened to defend the rule against legal attacks, and when the Trump administration rolled back the SIP Call rule, Sierra Club filed multiple lawsuits challenging each rollback. Sierra Club has also successfully pressured EPA to take action to implement the 2015 SSM SIP Call through a lawsuit, and we have continued to ensure each state plan protects communities by commenting on every state plan revision.
After President Biden was elected, the Sierra Club and our allies stepped up advocacy efforts to pressure EPA to eliminate the SSM loopholes everywhere they are found in EPA and state rules. We drafted one rulemaking petition to remove loopholes from SIPs, and another addressing the same for EPA rules. The SSM team twice gathered over 100 community groups to sign onto advocacy letters, and recruited community members to deliver powerful testimony, in several virtual meetings with high-level EPA and White House officials. We also produced a 5-minute video showing black smoke belching out of facilities in five locations around the country during SSM events while community leaders narrated their experiences. The team organized another fly-in in March 2023 of community advocates from 3 different states to meet with congressional representatives and deliver over 7,000 public comments to EPA, and facilitated a letter signed by more than 2 dozen members of Congress.
Although more work remains to be done to remove all the loopholes from EPA rules, our legal and advocacy efforts have been very successful. In February 2023, the EPA proposed to reinstate the SIP Call for 3 states where the Trump administration had rolled back the rule, as well as five other states. And in July 2023, EPA published the final “Title V SSM Affirmative Defense Rule,” removing all emergency SSM loopholes from the agency’s federal operating permit regulations, and requiring the states to remove similar loopholes, representing yet another big win for the coalition.
Sierra Club is represented in the D.C. Circuit litigation filed yesterday by Environmental Law Program attorneys Joshua Smith and Andrea Issod, along with co-counsels at Earthjustice, and allies California Communities Against Toxics, Ironbound Community Corporation, Environmental Integrity Project, and Natural Resources Defense Council. Sierra Club’s SSM team includes Air Toxics lead volunteer Jane Williams, Patrick Drupp from the Federal Policy Team, Jessica King from Communications, and Sonya Lunder, Senior Toxics Policy Advisor.