On August 27, the Third Circuit Federal Court of Appeals rejected the Environmental Protection Agency’s approval of a weak air pollution rule that would allow coal-fired power plants in Pennsylvania to exceed pollution limits.

The Court found that the EPA did not provide a basis for the high emission limit for smog-causing nitrogen oxides produced by coal power production. Further, the Court held that the EPA failed to provide data in support of a temperature threshold that could allow more pollution.

Finally, the Court rejected the EPA’s failure to require reporting of temperature data, which it called part of a “shoddy enforcement regime” by the EPA.

The Court wrote that these three elements of the rule “spawn a pernicious loophole.”

“The Third Circuit’s opinion finds, in no uncertain terms, that the EPA was wrong to approve a weak and unenforceable Pennsylvania rule,” said Charles McPhedran, an attorney with Earthjustice who, with his colleague Mychal Ozaeta, represented the Sierra Club. “High emissions have downwind consequences for air quality and public health, and EPA and Pennsylvania must do better.”

"This decision is a strong rebuke to EPA, and a powerful reminder of the obligation EPA has to protect the public from smog-producing pollution from dirty coal-fired power plants,” said Zachary Fabish, an attorney for Sierra Club who also litigated the case. “We hope that EPA will now take steps to prevent the harm to public health and the environment that this power plant pollution causes."

In response to a question by Don Hopey of the Post-Gazette, DEP said it was reviewing the decision.

Click Here for a copy of the opinion.

Background

As explained by Reid Frazier of StateImpact, “The 2016 rules were put into place by the DEP to comply with federal mandates to curb ozone, or ground-level smog. The agency required coal-fired power plants to use pollution controls to lower their emissions of Nitrogen Oxides (NOx), which help form ozone when exposed to sunlight.

“But it gave plants the option of not using those controls when the plant’s emissions stream fell below 600 degrees fahrenheit, typically at times of reduced capacity.

“The court held this temperature threshold was a “gaping loophole” in the ozone rule and threw the plan out. The loophole remains on the books until a new rule is written, in the next two years.

“The judges said one coal plant, the Cheswick Generating Station near Pittsburgh, was using the emissions control loophole to turn off its pollution controls at certain times of day.”

Note: As a result of competition with natural gas, 18 coal-fired power plants have been deactivated or converted to natural gas in the last few years and another is scheduled to end its coal use by 2029. Read more here.

(Photo: Cheswick Power Plant, Allegheny County, The Allegheny Front.)

NewsClips:

Reid Frazier: Federal Judges Throw Out ‘Gaping Loophole’ In PA Coal Pollution Reduction Plan

Don Hopey: Federal Court Rejects ‘Weak And Unenforceable’ PA Power Plant Emissions Reduction Plan

[Posted: August 29, 2020]

8/31/2020