August 27, 2020: Today, we received
from the Third Circuit Court of Appeals, dressing-down EPA and holding that the agency acted arbitrarily and capriciously in approving weak emission limits for smog-causing pollution from Pennsylvania's coal-fired power plants, before directing the agency to go back and fix those limits.
States like Pennsylvania that suffer from unhealthy and unsafe levels of ground-level ozone pollution, or smog, are required to set emission limits for sources of the pollutants that cause that smog. Coal-fired power plants are among the biggest sources of smog-causing nitrogen oxides pollution in Pennsylvania, and so Pennsylvania was required to propose, and EPA to approve, emission limits to address that pollution. Such limits--referred to as "RACT" or "reasonably available control technology"--under the federal Clean Air Act are meant to be technology-forcing. Unfortunately, EPA's rule for Pennsylvania set a weak limit for nitrogen oxides pollution from coal plants, and then further weakened that limit by saying it only applied when pollution controls were operating at high temperatures.
So, the Club challenged the rule as inadequate. And the Third Circuit agreed with us, stating that the problems with EPA's rule collectively "spawn a pernicious loophole," and noting that while courts often prefer to defer on technical issues to EPA, "[o]ur deference to agency expertise is not a blank check allowing the EPA to act arbitrarily." EPA is now required to develop a rule that better protects Pennsylvania's air quality. But this decision has implications beyond Pennsylvania: not only will states downwind of Pennsylvania's pollution benefit, but other states performing their own RACT determinations are on notice that they need to make real reductions in smog-causing pollution in order to survive court review.
Sierra Club was represented in the case by Environmental Law Program attorney Zack Fabish and Earthjustice attorneys Charley McPhedran (who argued the case before the Third Circuit) and Mychal Ozaeta, with support from ELP Senior Paralegal Violet Lehrer and Earthjustice's Senior Research and Policy Analyst Flora Champenois and Litigation Assistant Charlotte Reed.