The Trump administration could end up defending an Obama-era EPA rule in court

The most famous lawsuits against the Environmental Protection Agency (EPA) right now are probably those 14 filed by Scott Pruitt, the anti-regulation Oklahoma Attorney General that Trump picked to lead the agency.

But there’s another category of EPA lawsuits that don’t make headlines as often these days: those designed to force the agency to write stricter environmental rules, not relax the ones that already exist.

And the first such lawsuit — concerning an Obama-era EPA decision — is already headed for a courtroom, as Inside EPA first reported.

A lawsuit filed by the Sierra Club and a group of petitioners from California argues that the EPA has failed in its legal responsibility to regulate three air pollutants.

The case, which heads to oral argument in front of the DC Circuit Court February 10, gets a bit into the weeds of procedures for EPA rulemaking. But here’s what you need to know:

  • In 1990, Congress introduced a series of amendments to the Clean Air Act, which is the foundational law behind all those specific emissions rules that come out of the EPA.
  • Among other things, the amendments required that the EPA develop a list of emissions sources* for seven dangerous airborn toxins (Hazardous Air Pollutants, or “HAPs”) that build up in living things and may cause cancer and other major health issues.
  • Once the list was officially recorded, it was the EPA’s job to write regulations for those HAP sources that would reduce HAP emissions as much as reasonably possible.
  • For more then two decades, the EPA avoided going through the official process for writing the list it came up with into the federal rulebook
  • A separate lawsuit in 2015 forced the agency’s hand. So in 2015, under Obama, the EPA wrote the list into the Federal Register.
  • But the EPA never actually created regulations targeting the seven HAPs. Instead, it relied on regulating “surrogate pollutants.” That is, it regulated pollutants that tend to get emitted alongside the seven HAPs, under the theory that reducing them would reduce HAP emissions as well.
  • In this new lawsuit, which began in June 2016, the Sierra Club argues that the EPA has therefore failed to meet the requirements Congress established in 1990, and thus must write new regulations to comply with the law.

Obama’s Department of Justice defended the EPA, arguing that the Sierra Club was attacking an established, accepted regulatory approach long after the legal period for challenging it ended.

Now, if the EPA loses, Pruitt and the Trump Administration could find themselves forced to write new regulations, even after promising to reduce the total count on the books.

*A technical point: The list didn’t actually have to include all sources, but the sources on the list did have to add up to 90% of total emissions.

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