On September 29, 2015, the Third Circuit held in Nat’l Parks Conservation Ass’n v. U.S. E.P.A., ((2015 WL 5692605 (3d Cir. Sept. 29, 2015))), that an air pollution control plan submitted by Pennsylvania to the U.S. Environmental Protection Agency (“EPA”) was insufficient in protecting against pollution. The appeal was filed by Earthjustice, “on behalf of the Sierra Club, the Clean Air Council, and the National Parks Conservation Association.”((Don Hopey, Appeals Court Rules State Air Pollution Plan For Parks Is Insufficient, PITTSBURGH POST-GAZETTE, Sept. 30, 2014, http://www.post-gazette.com/local/region/2015/09/30/Appeals-court-rules-state-air-pollution-plan-for-parks-is-insufficient/stories/201509300203.))
The court held that “Pennsylvania was in violation of the federal Clean Air Act because it did not require coal-burning power plants and industrial facilities to install the best available pollution controls.”((Id.)) The court noted that “Section 169A of the Clean Air Act, 42 U.S.C. § 7491, and implementing regulations promulgated by the . . . EPA . . . require states to evaluate the impact that emissions from certain sources of pollution within their borders have on atmospheric visibility in national parks and wilderness areas.”((Nat’l Parks Conservation Ass’n.)) The Third Circuit determined that the EPA failed to adequately justify the approval of the plan, and remanded the issue back to the EPA for revisions.((Hopey.)) Power plants in Pennsylvania have been found to contribute to the hazy conditions in various parks and wilderness areas around the country. The emissions have reached as far away as Acadia National Park in Maine, the Brigantine National Wilderness Area in New Jersey, and Virginia’s Shenandoah National Park.((Id.))
The court found that Pennsylvania’s Department of Environmental Protection did not require pollution sources to utilize adequate additional controls that were previously determined to be too costly when compared with the visibility improvements that would result. The Plan was found to be “so lacking in specifics that it provided no justification for the EPA’s decision to approve the plan.”((Id.))
Charles McPhedran, an attorney for Earthjustice who worked on the case, stated “[t]he EPA has to go back and strengthen this [emissions control] plan or require Pennsylvania to submit more information . . . Our national parks deserve the strongest protections from dirty air . . . The state and EPA need to assure that people can enjoy unpolluted views in these majestic places.”((Id.))
The EPA has 45 days to file for a rehearing. The agency reported that it is currently reviewing the decision, and considering its response.