Appeals Court Upholds Soot Compliance Regulations for Power Plants

(Washington, D.C. – March 11, 2014) A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit has rejected an industry effort to weaken compliance provisions for environmental standards that reduce soot pollution from power plants.

“The court’s decision today means communities can have more confidence that pollution standards for soot are being met,” said Pamela Campos, attorney for Environmental Defense Fund, which was a party to the case. “The court upheld rules requiring those power plants to use low-cost procedures to ensure that their pollution control technologies are working effectively. Strong compliance rules are a critical for protecting public health.”

The compliance rules at issue in the case cover fossil-fuel-fired steam generating units built between 1971 and 1978. The plants emit particulate matter, which is commonly known as soot. Soot is a dangerous type of air pollution that’s linked to heart and lung diseases including heart attacks, asthma attacks, and in some cases premature death.

EPA’s rules require older plants, which generally meet less stringent standards for soot, to use a process called opacity testing to confirm compliance. Industry opponents challenged the rules, arguing that opacity testing was too burdensome.

At the same time, the state of Texas sued, claiming it should have been allowed to use state, rather than federal, affirmative defense provisions in resolving any disputes associated with rules.

Today, the court ruled against industry opponents, stating:

[T]he purpose of retaining the opacity standard for such a unit is to provide a real-time check to ensure that its particulate matter control device is function properly … Because    EPA has articulated a reasonable explanation for requiring opacity monitoring, petitioner’s challenge  to this requirement fails.

The court also ruled that Texas could not assert its claims prior to EPA resolution of an administrative petition dealing with the same actions. 

The case was heard by Chief Judge Merrick Garland and Judges Judith Rogers and Brett Kavanaugh.

Today’s decision is one part of a larger set of cases that challenge EPA’s historic air toxics rules for power plants. The court has not yet released a decision in the main branch of that case, dealing with EPA’s Mercury and Air Toxics Standards for existing power plants.

The court is also now considering a challenge to our national air quality standards for soot pollution.