Health, Environmental Groups File Lawsuit Challenging Trump Administration’s Air Toxics Loophole

(Washington, D.C. – January 15, 2021) Ten health and environmental groups from around the country filed a lawsuit in the U.S. Court of Appeals for the District of Columbia today opposing the Trump administration’s creation of a loophole for large emitters of dangerous air pollution.

“This loophole will leave millions of Americans more vulnerable to dangerous and cancer-causing air pollution,” said Vickie Patton, General Counsel for Environmental Defense Fund. “It’s another flagrant attempt by the Trump EPA to allow big polluters to pollute even more – contrary to the requirements of the Clean Air Act and the public health needs of our communities.”

Under the Clean Air Act, large industrial facilities must comply with “maximum achievable control technology” standards (MACT standards) if their emissions of hazardous air pollutants exceed “major source” thresholds. The MACT standards apply to 187 dangerous and cancer-causing pollutants, including benzene and mercury.

The MACT standards are so effective in reducing air pollution that they often cause industrial facilities to fall well below the “major source” thresholds. For that reason, EPA interpreted the Clean Air Act in 1995 to require major industrial facilities to comply with MACT standards for as long as they operate. That “once in, always in” interpretation remained in place for over twenty years.

Then, this past October, EPA Administrator Andrew Wheeler finalized a loophole that would allow thousands of large industrial facilities that are currently considered “major” sources to opt out of the MACT standards – and in many cases become subject to weaker standards or no standards at all. Wheeler’s loophole would allow any major pollution source to reclassify itself as a smaller “area source” if it emits below the major source threshold, even if it is only emitting below the threshold because it is complying with MACT standards.

Wheeler’s loophole would undermine the permanent reductions in pollution that these essential Clean Air Act protections are intended to achieve. EPA’s own analysis found that thousands of industrial facilities nationwide, such as refineries and chemical plants, could take advantage of this loophole to reclassify themselves as area sources. EDF’s analysis of information provided by EPA in the proposed rule found the potential for an increase of over 49 million pounds per year in toxic air pollution. Many of the facilities that could increase pollution under the loophole are in low-income communities and communities of color that disproportionately suffer from air pollution and are the most vulnerable to the health impacts of poor air quality.

EDF was joined on today’s petition for review to the D.C. Circuit by California Communities Against Toxics, Downwinders At Risk, Environmental Integrity Project, Hoosier Environmental Council, Louisiana Bucket Brigade, Natural Resources Defense Council, Ohio Citizen Action, Sierra Club, and Texas Environmental Justice Advocacy Services.