The Supreme Court permanently closed a loophole in the Clean Air Act on Monday by refusing to review a lower court decision.
The loophole, known as the "startup, shutdown and malfunction" exemption effectively allowed major industrial polluters to exceed emissions standards whenever they claimed that their equipment "malfunctioned."
Community and environmental groups, represented by Earthjustice in this case against the Bush-era U.S. Environmental Protection Agency, succeeded in closing the loophole with a win in federal court in December 2008. Following the D.C. Circuit’s decision, EPA did not seek Supreme Court review, but American Chemistry Council and other major industry groups, which had intervened in the case, did.
"We’re pleased that the court has finally put an end to this litigation," said Earthjustice attorney Jim Pew. "This air pollution exemption has caused terrible suffering in thousands of communities. No one disputes that it’s illegal. Under the Obama administration, EPA has already committed to rethink this loophole."
The groups that brought the case, Sierra Club, Environmental Integrity Project, Louisiana Environmental Action Network, Coalition for a Safe Environment and Friends of Hudson said that vast quantities of excess toxic pollution are released into the atmosphere when refineries, chemical plants, and other industrial facilities exceed their emission standards as a result of alleged "malfunctions" as well as when operations startup and shutdown.
During these events, toxic emissions can skyrocket, severely degrading air quality. And some facilities evade clean air protections by claiming that they are in "startup, shutdown and malfunction" mode during much of their operating time.
The loophole’s potential for abuse was on full display on Sept. 25, 2009, when news outlets reported on a fire caused by a malfunction at the Tesoro Energy Corp’s Wilmington, California refinery. What most news reports don’t detail is the fact that the fire burned for more than 6 hours. That’s several hours of fumes emitted from a 100,000 barrel-per-day refinery. The refinery produces gasoline, jet fuel, diesel fuels, petroleum coke and fuel oil.
Jesse Marquez, executive director for the Coalition for a Safe Environment, lives just three miles away from the Tesoro refinery. He was at the scene of the incident and said the malfunction began at 6 a.m. and for hours a noxious smell of crude oil and diesel fuel fumes filled the air. The refinery notified the elementary school a mile away of the fire but it did not inform residents. Not only did residents contend with poisonous emissions, the fire left soot on peoples’ cars and homes. The refinery eventually paid for the cost of cleaning homes and cars but did not reveal what public health risks occurred as a result of the hours-long exposure to these pollutants. Along with the Tesoro refinery, Wilmington–just four square miles–is home to the ConocoPhillips and Valero refineries.
"Almost every week a refinery has a malfunction and equipment break down and almost every year there is a fire," said Marquez. "Each of these refineries exposes our children to hundreds of tons of toxic pollutants every year. I am pleased with the Supreme Court’s decision because we need strict rules to regulate refineries and they must be held accountable when their violations of emission standards put the public in harm’s way."
"Hopefully as a result of this decision, companies will take responsibility for accidents that expose their neighbors to dangerous pollutants," added Eric Schaeffer, director of Environmental Integrity Project. "The Clean Air Act doesn’t excuse ‘accidental’ pollution, and neither should the U.S. Environmental Protection Agency."
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