Thank You For Submiting Feedback!
United States Court of Appeals for the District of Columbia Circuit
October 24, 2013, Argued; April 18, 2014, Decided
No. 10-1371 Consolidated with 10-1378, 13-1112
[*1056] [**331] Kavanaugh, Circuit Judge: [***2] Portland cement is the key ingredient in concrete. The basic process for making Portland cement is much the same today as it was when the material was first developed nearly 200 years ago. Cement manufacturers pulverize limestone and minerals, and then heat those raw materials to several thousand degrees. The resulting substance, called clinker, is then cooled and ground into a fine gray powder. This powder — called Portland cement — is later combined with sand, rocks, and water to make concrete.
The grinding and heating involved in cement manufacturing has an unfortunate side effect: It releases into the air a number of hazardous air pollutants, most notably mercury, hydrochloric acid, hydrocarbons, and particulate matter. This case concerns EPA's efforts to develop rules under the Clean Air Act to limit emissions of those pollutants from cement plants.
[*1057] [**332] In a previous decision, we considered EPA's first attempt to create emission standards for the cement industry, and we found the agency's action arbitrary and capricious. See Portland Cement Association v. EPA, 665 F.3d 177, 398 U.S. App. D.C. 397 (D.C. Cir. 2011). Following our ruling, EPA went back to the drawing board and developed the emission standards [***3] at issue here, the 2013 Rule.
Several environmental organizations, including the Natural Resources Defense Council and the Sierra Club, have petitioned for review of the 2013 Rule, arguing primarily that certain aspects of the Rule contravene the Clean Air Act. They also challenge EPA's decision to create an affirmative defense for private civil suits in which plaintiffs sue sources of pollution and seek penalties for violations of emission standards. EPA's affirmative defense would be available to defendants in cases where an "unavoidable" malfunction had resulted in impermissible levels of emissions.
We conclude that the emissions-related provisions of EPA's 2013 Rule are permissible but that the affirmative defense for private civil suits exceeds EPA's statutory authority. We therefore grant the petitions in part and vacate the portion of the Rule pertaining to the affirmative defense. We deny the petitions in all other respects.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
749 F.3d 1055 *; 409 U.S. App. D.C. 330 **; 2014 U.S. App. LEXIS 7281 ***; 78 ERC (BNA) 1369; 2014 WL 1499825
NATURAL RESOURCES DEFENSE COUNCIL, PETITIONER v. ENVIRONMENTAL PROTECTION AGENCY AND GINA MCCARTHY, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS; CEMEX, INC., ET AL., INTERVENORS
Prior History: [***1] On Petitions for Review of Final Actions of the United States Environmental Protection Agency.
NRDC v. EPA, 2013 U.S. App. LEXIS 26584 (D.C. Cir., Oct. 3, 2013)
compliance, emission standards, affirmative defense, emissions, Air, particulate matter, pollutants, petitioners', cement, ton, beyond-the-floor, cost-effectiveness, civil suit, malfunctions, reduction, revised, courts, civil penalty, hydrocarbons, unavoidable, determines, petitioned, mercury, floor, hydrochloric acid, district court, violations, clinker, maximum, limits
Environmental Law, Emission Standards, Stationary Emission Sources, Hazardous Pollutants, Administrative Law, Judicial Review, Standards of Review, Deference to Agency Statutory Interpretation, Air Quality, Enforcement, Administrative Proceedings, Administrative Proceedings & Litigation, Judicial Review, Citizen Suits, Constitutional Controls, Authority to Adjudicate, General Overview