Judges hint at protecting EPA crackdown on industrial emissions

By Sean Reilly | 01/14/2025 04:17 PM EST

The lawsuit targets EPA’s removal of a legal shield for unpermitted pollution stemming from plant emergencies.

The Phillips 66 Los Angeles Refinery Wilmington Plant stands.

A Phillips 66 refinery in Los Angeles stands Nov. 28, 2022, in Wilmington, California. Federal judges heard oral arguments over EPA's removal of a legal shield for unpermitted pollution stemming from plant emergencies. Mario Tama/Getty Images

EPA’s elimination of an enforcement shield for some industrial air pollution violations appeared poised to survive after federal judges questioned a business coalition’s legal standing to challenge the agency’s decision.

The lawsuit, brought by the SSM Litigation Group, contests EPA’s 2023 removal of “affirmative defense” provisions that industries could use to parry enforcement actions when plant pollution exceeded the limits in their state-issued permits because of emergencies.

But early in Tuesday’s oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit, two members of the three-judge panel noted that the group’s filings lacked any mention of a specific facility with a stake in the outcome.

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To determine whether a legally redressable injury occurred, “Don’t we need to know that at least one member of your association operated in a state that had the affirmative defense before the EPA revoked it,” Judge Justin Walker asked Russell Frye, the lawyer representing the SSM Litigation Group.

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