States are banding together to fight a new rule from the U.S. Environmental Protection Agency that they argue undermines the federal-state partnership under the Clean Air Act, representing federal intrusion.
“More plainly stated, EPA’s Proposed Rule seeks to force 39 states to rewrite regulations previously adopted in accordance with state and federal law and approved by EPA,” reads a letter to the EPA from attorneys general from seventeen states, led by Oklahoma Attorney General Scott Pruitt. “EPA’s Proposed Rule represents a substantial change in state and federal relations.”
The EPA published a rule that found 36 states were out of compliance with federal clean air laws and needed to rewrite their state implementation plans to get rid of an exemption which allows emitting facilities to exceed emissions limits during times of startup, shutdown, and malfunction (SSM).
The rule was published in response to a lawsuit settlement between the agency and the Sierra Club, an environmental group. If the rule becomes final, facilities could become exposed to fines if they have excess emissions during times currently under SSM protection, which could prove costly for industry.
“It’s nonsensical,” a seasoned environmental lawyer, who spoke under conditions of anonymity, told The Daily Caller News Foundation, adding that there is potential for the states to mount a legal challenge against the rule.
The attorneys general are currently asking the EPA to extend the thirty day comment period for the rule change, which they argue is not enough time due to the “sweeping nature” of the rule and the “significant impact it would have on a majority of states.” The AGs are looking to increase the comment period for the proposed rule to at least 120 days.
During times of startup, shutdown, and malfunctioning, emissions controls on large facilities such as power plants or refineries don’t kick in right away and can take some time to bring the facilities emissions in-line within legal limits. Excess emissions during these times have been exempted from the Clean Air Act since the 1970s.
However, the states affected by the agreement between the EPA and environmentalists were not party to the lawsuit, and were essentially excluded from deciding how federal law would be implemented in the states.
“Often, these implementation efforts require the states to design plans to meet the individual circumstances of the state, while protecting and advancing the goals and requirements of federal environmental law,” the letter continues. “When EPA coordinates with non-governmental organizations regarding how federal law should be applied and implemented in an individual state, yet excludes the state from that effort the state and its citizens are harmed.”
“This practice is not acceptable to the states under the cooperative federalism framework set forth in the CAA,” reads the letter.
The EPA’s proposed rule also has critics arguing that this is more proof of collusion between the agency and environmental groups.
The environmental lawyer told The Daily Caller News Foundation that “there’s a tremendous amount of collaboration” between the environmentalists and the EPA. The lawyer added that the rule is “designed to take the states out of the picture” when creating air quality rules.
Republican Sens. David Vitter of Louisiana and Jeff Sessions of Alabama have both expressed concerns over the Obama administration’s alleged use of “sue and settle” lawsuits with environmental groups to push for stricter environmental regulations.
“Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit,” wrote Vitter and Sessions. “In other words, EPA went out of its way to resolve the SSM petition in a coordinated settlement with Sierra Club.”
“Sue and settle” lawsuits refer to those in which the EPA simply settles with an outside groups — many of them being environmental groups — and is forced by a court order to promulgate new regulations.
According to Richard Stoll, an attorney with Foley & Lardner LLP who practices environmental law, the EPA has increasingly been settling with outside groups — hundreds of EPA rules over the last few years.
Taxpayers even pay millions in attorneys fees for the attorney’s fees for groups that sue the agency as part of the settlement, according to the House oversight committee.
“Notwithstanding 40 years of precedent to the contrary, EPA has now decided that the SIPs of 36 states are legally inadequate because of their SSM provisions,” the senators added.
Sessions and Vitter have asked the EPA if it will provide all its records regarding the Sierra Club’s SSM petition and the settlement agreement.
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