Attorney General Becerra Leads Challenge to Trump Administration Rule Relaxing Restrictions on Emissions from Super Polluters

SACRAMENTO – California Attorney General Xavier Becerra today, leading a 13-state coalition, filed a lawsuit challenging the Trump Administration’s final rule allowing major sources of toxic air pollutants – such as petroleum refineries and chemical plants – to escape key federal air pollution regulations whenever they can keep their emissions below 10 tons per year. This change allows currently regulated sources to both increase their emissions up to the threshold and avoid monitoring and reporting requirements. In their lawsuit, the coalition intends to argue that the rule contravenes the Clean Air Act and is arbitrary and capricious.

“The Trump Administration has opened door after door for polluters and is all but begging them to walk through,” said Attorney General Becerra. “Under this latest policy, petroleum refineries and chemical plants can exploit an intentional new loophole to avoid regulation, leaving vulnerable communities with less protections to deal with toxic air pollution in their backyard — and in their lungs. It’s unacceptable – and legally unsound.”

“Rolling back toxics oversight and controls is another example of the Trump Administration’s profound lack of concern for public health and environmental protection,” said California Air Resources Board Executive Officer Richard W. Corey.  “EPA admits emissions of hazardous air pollutants may increase by over 1,200 tons per year under this major source reclassification rule—and these increases would largely occur in already environmentally disadvantaged communities, while simultaneously undermining public enforcement of what oversight and controls remain in place.”

The final rule formally replaces the Environmental Protection Agency’s (EPA) longstanding “Once In, Always In” policy. Since 1995, that policy had required major sources of toxic air pollutants to permanently take action to reduce their emissions. Major sources are those that emit or have the potential to emit 10 tons per year or more of any single toxic air pollutant or 25 tons per year or more of any combination of toxic air pollutants. Major sources are subject to emissions limits that require the maximum reductions achievable, often to well below these threshold levels. Even the smallest increase in toxic air pollutants can have substantial impacts on public health because of the acute toxicity of many of these compounds and the proximity of major sources to vulnerable communities.  

The EPA repealed the “Once In, Always In” policy in a 2018 guidance memo, allowing sources to evade emissions limits that would result in reductions to below these thresholds, as well as monitoring and public notice requirements. The final rule codifies that action, and excuses even more sources from “major” status.

In the lawsuit, the coalition intends to argue that the final rule:

• Contravenes the Clean Air Act’s core requirements that the EPA ensure major sources reduce toxic air emissions by the maximum level achievable; and
• Is arbitrary and capricious because the EPA failed to consider the potential increases in emissions resulting from the rule.

Attorney General Becerra is joined by the California Air Resources Board and the attorneys general of Delaware, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Virginia, Washington, and Wisconsin, as well as the Cities of New York and Chicago in filing this lawsuit. 

A copy of the lawsuit can be found here.