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  • Seventh Circuit upholds Wisconsin implementation of EPA revisions under Clean Air Act

    Without actual data or studies to evidence increased pollution, the EPA's regulation revisions as implemented by Wisconsin will stand as rational and consistent with the Clean Air Act.

    Joe Forward

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    Seventh Circuit upholds Wisconsin 
implementation of EPA revisions under Clean Air Act June 28, 2011 – Environmental groups recently lost their challenge to Wisconsin’s implementation of Environmental Protection Agency (EPA) rules that relate to permits for plant modifications.

    The Natural Resources Defense Council (NRDC) and the Sierra Club argued that state implementation of the EPA’s 2002 rule changes could lead to increased air pollution in violation of the Clean Air Act.

    But in Sierra Club v. Jackson, Nos. 09-1405 & 10-2123 (June 16, 2011), the U.S. Court of Appeals for the Seventh Circuit ruled that petitioners cannot rely on mere projections to sustain the claim.

    In 2002, the EPA revised federal regulations that determine when permits are required to modify existing pollution-emitting facilities. In 2005, objectors invoked sections of the Clean Air Act in arguing that “neither national nor state officials may make changes that cause air quality to deteriorate in parts of the country that have yet to attain the required standard” for air quality.

    In 2005, the D.C Circuit concluded that the new rules were rational and consistent with the Clean Air Act, and rejected as premature the argument that such revisions would lead to more emissions.

    In 2007, the EPA approved Wisconsin’s implementation plan, which includes features of the EPA’s 2002 regulation revisions. After failing at the federal level, the NRDC and the Sierra Club (current litigation) challenged implementation of the EPA revisions at the state level.

    Under the new rules, whether a modification permit is required depends on a comparison of past actual emissions with projected actual emissions after modification. The rules also allow polluters to select two years from the past 10 to measure past actual emissions.

    The NRDC and the Sierra Club argued the new rules could lead to increased pollution. For instance, the new rules could make new permits “so onerous that a firm will choose to run an old plant into the ground without repairs, avoiding a need to get a permit for modifications, even though old plants are generally dirtier than new ones (or newly repaired ones),” the appeals panel explained.

    According to the petitioners, new rules could also allow polluters to report the two highest polluting years for the decade to promote the belief that emissions will decrease after modification.

    Noting the absence of data or studies indicating such revisions have negatively impacted emissions in other states that have adopted the same regulations, the appeals panel upheld Wisconsin’s implementation of the EPA rules.

    “The experience in the states that have implemented the 2002 revisions may vindicate the EPA or may refute it; as long as the judiciary remains behind the veil of ignorance, it must accept the EPA’s projections” that increased emissions will not result, the appeals panel explained.

    The panel also noted that if “Wisconsin’s implementation of the 2002 revisions turns out to allow more emissions, then the state must do something else (or something more) to curtail pollution.”

    By Joe Forward, Legal Writer, State Bar of Wisconsin