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.