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Another EPA Air Rule Goes Down:

Today the U.S. Court of Appeals for the D.C. Circuit voided yet another Bush Administration Clean Air Act regulation in Sierra Club v. EPA. The majority opinion by Judge Griffith (joined by Chief Judge Sentelle) begins:

The 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include “monitoring . . . requirements to assure compliance with the permit terms and conditions.” 42 U.S.C. § 7661c(c). Sometimes, existing monitoring requirements do not “assure compliance.” The Environmental Protection Agency (“EPA”) promulgated a rule preventing state and local authorities from supplementing these inadequate monitoring requirements. We vacate this rule because it is contrary to the statutory directive that each permit must include adequate monitoring requirements.

Judge Kavanaugh has a brief dissent, which begins:

I agree completely with the majority opinion about bedrock principles of statutory interpretation. The plain meaning of the text controls; courts should not strain to find ambiguity in clarity; courts must ensure that agencies comply with the plain statutory text and not bypass Chevron step 1. And I strongly align myself with the majority’s quotation from Justice Frankfurter about the best tool of statutory interpretation: “Read the statute; (2) read the statute; (3) read the statute!” Maj. Op. at 10. In this case, however, I respectfully part ways with the majority opinion because the relevant statutory language supports EPA’s 2006 rule.

This decision comes one month after the D.C. Circuit completely vacated the Bush Administration's Clean Air Interstate rule in North Caroline v. EPA. Given the administration's other losses on New Source Review and mercury, among other things, I think it is fair to say that the D.C. Circuit has repudiated the vast bulk of the Bush Administration's clean air regulatory reforms, which were the Administration's most notable and significant (if not always wise) environmental policy initiatives. The Administration devoted more time and effort to these reforms than any other environmental initiative, and they have precious little to show for it.

UPDATE: The NYT covers the decision (and quotes this blog post) here.

UPDATE: The Washington Post reports here, and the WSJ here.

mad the swine (mail):
"I think it is fair to say that the D.C. Circuit has repudiated the vast bulk of the Bush Administration's clean air regulatory reforms, which were the Administration's most notable and significant (if not always wise) environmental policy initiatives."

Oh, of course they weren't always 'wise', according to the Gaiafascists. Trying to protect the economy from overzealous anti-corporate regulation, especially in the middle of the Clinton Recession? Obviously a bad idea.
8.19.2008 12:28pm
Suzy (mail):
Gaiafascists? Oh gosh. What's so bad about clean air?
8.19.2008 12:45pm
byomtov (mail):
The Administration devoted more time and effort to these reforms than any other environmental initiative, and they have precious little to show for it.

For this failure, at least, we can be grateful.
8.19.2008 12:46pm
SATA_Interface:
Suzy, it's bad for business!!1! Just look at Beijing, a model for the success of low environmental regulations vs those hard-working factories building my next Ipod.
8.19.2008 1:07pm
Crunchy Frog:

The Administration devoted more time and effort to these reforms than any other environmental initiative, and they have precious little to show for it.

Nonsense. They got eight years of not having to abide by the previous regime. Never underestimate the power of stall tactics.
8.19.2008 1:32pm
Adam J:
Nice comment swine... although it certainly doesn't top when you claimed that domestic abuse doesn't threaten society.
8.19.2008 1:37pm
Ryan Waxx (mail):

Suzy, it's bad for business!!1! Just look at Beijing, a model for the success of low environmental regulations vs those hard-working factories building my next Ipod.


I love when people parody themselves and don't even realize it. SATA, why do you suppose China is building your Ipod and not the USA?

Hint: you'll have to ignore your previous post to answer.
8.19.2008 1:49pm
byomtov (mail):
I love when people parody themselves

It's hard to top Swine for self-parody. Maybe impossible. The Clinton Recession?
8.19.2008 1:53pm
Brian Mac:

I love when people parody themselves and don't even realize it.

And I love it when people fail to detect intentional parody, especially of the blindingly obvious variety ;-)
8.19.2008 2:02pm
mad the swine (mail):
"Just look at Beijing, a model for the success of low environmental regulations vs those hard-working factories building my next Ipod."

I'm sure you think you're being sarcastic :)
8.19.2008 2:14pm
Suzy (mail):
I assumed that China was building your ipod because of the cheap labor, and that lack of environmental regulation (do ipod factories produce a lot of air pollution?) was just a side bonus. Luckily China is on the other side of the globe, so there's no way the things they emit into the atmosphere could possibly affect anyone else.
8.19.2008 2:17pm
Brian Mac:

Luckily China is on the other side of the globe, so there's no way the things they emit into the atmosphere could possibly affect anyone else.

Heh.
8.19.2008 2:35pm
EH (mail):
What's so bad about clean air?

It's excessively regulated. There's no reason why it shouldn't be subject to supply and demand, like everything else.
8.19.2008 4:44pm
Mark2 (mail):
I think Bush's Policy on considering economics in writing regulations for de minimus quantities of toxics (mercury, etc...) in air emission is wise. Letting the Sierra Club or a Judge (or outside special interest) control the written regulations through the Courts would allow them to ban our current energy sources and destroy our economy.

But if the Environmentalists, Judges and the Courts are determined to play politics and legislate from the bench, then the Administration should engineer a train wreck in putting together the regulation. And thereby force the process back to the legislative branch of government, by turning the Court issued law into a political disaster.

For example if the Sierria Club uses mercury to ban coal, the administration should just ban other power sources that emit a de minimus quantity of toxics at the same time. In that way coal, oil, natural gas, gasoline and diesel (coal/mercury, natural gas/ 1,4-dioxan, gasoline/benzene, diesel/sulfur dioxide) would all be banned at the same time. A ban on all these chemicals at once, would give the Administration the leverage to make the Congress act. In that way, the Administration could push thought new laws to govern EPA that would consider economics and revise the Clean Air Act. The Administration could even use selective enforce in areas on non-attainment such as the Bay Area to make liberal supported of these special interests see the "light" by taking it away.
8.19.2008 4:46pm
Crunchy Frog:

What's so bad about clean air?

It's excessively regulated. There's no reason why it shouldn't be subject to supply and demand, like everything else.

For supply and demand to be an effective regulator of the market, there has to be private ownership of the commodity in question. Who owns the air? And once you establish ownership of "your air", how do you maintain control of it? Brand it like cattle?

"I'm sorry, those are my oxygen molecules. See the logo imprinted on the side?"
8.19.2008 5:41pm
Jim Miller (mail) (www):
An extremely minor point, of interest to very few: The air has gotten cleaner since Bush took office, in part because of steps his administration took. For instance, new stricter controls on diesel emissions.
8.19.2008 11:05pm
David Warner:
He's dead, Jim.

Sorry, but you've violated the Narrative.
8.19.2008 11:29pm
TokyoTom (mail):
Jon, congrats on getting quoted and interviewed at the NYT, where you acknowledge that this was both an enforcement giveaway to industry and a needless interference with an aspect of the CAA that has the effect of increasing information and lowering monitoring costs - two of the principal factors behind the environmental Kuznets curve.
8.20.2008 1:54am
Jay Myers:
If taxpayers don't have standing to sue the government over what it spends tax revenues on, how can the Sierra Club have standing to challenge government regulations that don't apply to it?
8.20.2008 3:18am
Prof. S. (mail):
I love how reporters are now too lazy to go get their own commentary. Now they just report what people say on blogs.
8.20.2008 10:25am
John Walke (mail) (www):
Very well said, Jonathan.

I've added my own thoughts on the court's decision here: NRDC blog post.
8.20.2008 12:16pm
SATA_Interface:
Maybe I can trade my clean air credits earned in the oxygen markets and put the money towards a new Ipod. I think that if the Chinese citizens get their act together and start to demand a better standard of labor and living, maybe the ipod can be built in Turkmenistan - I hear they have a lot of poverty and clean air over there too!!

Or I could trade my future final ten years of oxygen consumption and get something even more cool! Perhaps a sarcasm and intentional parody detector??!!
8.20.2008 2:34pm
Barney Frank (mail):
"I'm sorry, those are my oxygen molecules. See the logo imprinted on the side?"

I'm assuming anyone holding this opinion believes carbon cap and trade to be similarly nonsensical?
Otherwise you would be maintaining the position that what we inhale is not subject to market forces but what we exhale is.
8.21.2008 10:48pm