Did Bush EPA's Loss Strike Down Clinton EPA Rule?

An interesting aspect of Sierra Club v. EPA, the Clean Air Act case I 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 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.

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