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AISI claims EPA overreach on regional haze

Mar 06, 2014 | 02:18 PM | Jo Isenberg-O’Loughlin

Tags  air pollution, regional haze, AISI, American Iron and Steel Institute, Tom Gibson, EPA, Environmental Protection Agency, U.S. Supreme Court amicus brief


NEW YORK — The American Iron and Steel Institute, in a move to counter what it believes to be federal regulatory overreach, has asked the U.S. Supreme Court to stop the Environmental Protection Agency from usurping state authority on new emission controls targeted at minimizing "regional haze."

In a 31-page amicus curiae (friend of the court) brief filed March 5, the Washington-based trade association joined the Industrial Energy Consumers of America, the National Association of Manufacturers, the National Mining Association and the Portland Cement Association in asking the Supreme Court to review the EPA’s replacement of some states’ clean air implementation plans.

The AISI wants the Supreme Court to overturn the rulings of two federal circuit courts last summer that upheld the EPA’s right to replace state authority on regional haze plans.

"Because regional haze is an aesthetic regulation and not a public health standard, Congress has emphasized that states should be the lead decision makers," AISI president and chief executive officer Thomas J. Gibson said in a statement announcing the filing. "However, the EPA is using the rule on haze to force cumbersome and expensive federal restrictions on power production, mining and other activities that impact steel manufacturing, even in states and counties with notable clean air."

The filing was in response to petitions against the EPA submitted to the Supreme Court by Oklahoma and North Dakota. The AISI noted in the brief that its member companies operate taconite processing plants in Minnesota and Michigan that are currently challenging the agency’s regional haze rules in those states before the U.S. Court of Appeals for the Eighth Circuit.

"The Oklahoma and North Dakota cases raise fundamental issues of the EPA’s authority to review state implementation plans that impact AISI members across the nation," the brief said. The filing went on to note that the EPA recently supplanted 13 state regional haze plans with direct federal rules imposing its own preferences.

Squire Sanders (US) LLP, legal counsel for the trade groups, argued in the brief that the Oklahoma and North Dakota cases reflect a growing pattern of disregard for the statutory limits of the EPA’s review authority.

"At their core, both cases raise the fundamental question of how much deference the EPA owes to state decisions," the brief said. "The EPA’s intrusion into more than a dozen regional haze (state implementation plans) and its insistence on imposing its own preference before it even identified flaws in some of those state plans demonstrate that the EPA will continue to push its review authority beyond what the Clean Air Act allows to the detriment of states and industry alike absent guidance from this court."




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