Saturday, March 18, 2006

Federal Court Strikes Down EPA's "Humpty Dumpty" Attempt to Limit the Clean Air Act

The United States Court of Appeals for the District of Columbia yesterday ruled against the EPA's attempt to loosen the rules governing pollution controls at factories, refineries and power plants. The EPA had issused new regulations allowing existing facilities to actually increase emissions when repairing or upgrading equipment, based on a rather tortured interpretation of the intent and plain language of the Clean Air Act.
The New York Times article includes a link to the opinion, which includes this reference to noted legal scholar and political philosopher Lewis Carroll:
EPA’s approach would ostensibly require that the definition of “modification” include a phrase such as “regardless of size, cost, frequency, effect,” or other distinguishing characteristic. Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use. We decline to adopt such a world-view.
This is the only legal opinion I've ever read (not that I've read many) that includes a footnoted reference to Through the Looking Glass. Simply put, the three judge panel concluded that the Clean Air Act says what it means and means what it says:
Accordingly, we hold that the ERP [Equipment Replacement Provision] violates section 111(a)(4) of the Clean Air Act in two respects. First, Congress’s use of the word “any” in defining a “modification” means that all types of “physical changes” are covered. Although the phrase “physical change” is susceptible to multiple meanings, the word “any” makes clear that activities within each of the common meanings of the phrase are subject to NSR [New Source Review] when the activity results in an emission increase. As Congress limited the broad meaning of “any physical change,” directing that only changes that increase emissions will trigger NSR, no other limitation (other than to avoid absurd results) can be implied. The definition of “modification,” therefore, does not include only physical changes that are costly or major. Second, Congress defined “modification” in terms of emission increases, but the ERP would allow equipment replacements resulting in non-de minimis emission increases to avoid NSR. Therefore, because it violates the Act, we vacate the ERP.
The News Journal reports that Delaware's former attorney general Jane Brady was among the 15 state attorneys general who challenged the EPA.

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