E.P.A. Plans to Curtail the Ability of Communities to Oppose Pollution Permits

Jul 15, 2019 by

A paper mill near a residential area in Maine. The planned new rules would end communities’ ability to appeal pollution permits.
Credit Shawn Patrick Ouellette/Portland Press Herald, via Getty Images

Want climate news in your inbox? Sign up here for Climate Fwd:, our email newsletter.

WASHINGTON — The Environmental Protection Agency is preparing to weaken rules that for the past quarter-century have given communities a voice in deciding how much pollution may legally be released by nearby power plants and factories.

The changes would eliminate the ability of individuals or community advocates to appeal against E.P.A.-issued pollution permits before a panel of agency judges. However, the industrial permit-holders could still appeal to the panel, known as the Environmental Appeals Board, to allow them to increase their pollution.

The draft plan was described by three people familiar with the document, who requested anonymity because the proposal is not yet public. The document has been largely completed, they said, and the next step would be to announce the proposed rule change and seek public comment.

“This is outrageous,” said Richard Lazarus, an environmental law professor at Harvard. “Individuals in communities will lose a way to seek relief from pollution that has historically been very effective. But industry will still be able to seek relief to pollute more.”

E.P.A. press officers did not respond to an emailed request for comment.

The proposed change is the latest in the Trump administration’s long-running effort to roll back environmental regulations and reduce regulatory burdens on industry, including the June announcement of a new E.P.A. rule that would weaken regulations on planet-warming greenhouse pollution from power plant smokestacks, the expected late-summer announcement of a similar plan to weaken rules on vehicle tailpipe pollution, and a 2018 proposal to open much of the United States coastline to oil drilling.

The planned changes follow a Monday speech by President Trump in which he sought to frame himself as a conservationist and protector of public land.

Mr. Lazarus and other environmental law experts said the proposed rule change would not only grant industry a broader role in influencing the E.P.A. to issue more lenient pollution permits, but could disproportionately harm poor and minority communities, which are statistically more likely to be located near polluting sites.

“What E.P.A. is proposing means communities and families no longer have the right to appeal a pollution permit that might affect them,” said Patrice Simms, a former staff lawyer for the Environmental Appeals Board who is now an attorney at Earthjustice, an advocacy group. When the agency issues pollution permits, “they may or may not get it right,” Mr. Simms added.

Lawyers for industrial interests said the proposed change would eliminate burdensome red tape, speeding up a process that is ultimately decided by the courts anyway.


“Often the Environmental Appeals Board is just sort of an expensive and time-consuming stop along the way to the court of appeals,” said Russell Frye, a lawyer for several companies that have received and appealed such permits, including oil companies, power plants and paper-and-pulp factories. “This would eliminate that step for my clients.”

Another industry lawyer, Jeffrey Holmstead, who represents companies that operate coal-burning power plants, wrote in an email that he, too, was surprised by the fact that companies would be allowed to appeal, but not opponents. “It seems a bit odd to have an asymmetric appeals process,” he wrote.

The board was created in 1992 by William K. Reilly, the E.P.A. administrator under the first President Bush.

Individuals who have filed appeals with the board said it offered an effective forum for people who could not afford to mount a full legal case. Among them is Emerson J. Addison III, an unemployed English teacher in Clare County, Mich., who last year filed an appeal with the board after the E.P.A. issued a permit to the Muskegon Development Company to inject water into a defunct oil well in Mr. Addison’s community in an effort to reconstitute the well.

Mr. Addison feared that, in the process, contaminated water would leak from the well into the local water supply. “This is a poor area,” he said. “Most people don’t have the money to fight something like this in court.”

In April, the Environmental Appeals Board sent the permit back to the E.P.A. for revision, ruling that it wasn’t clear if the agency had sufficiently considered public comments or the effects of the plan on the poor and minority members of nearby community.

It is not yet known whether the agency will revoke the permit or simply revise it, but “if they eventually do it, maybe it will be safer,” Mr. Addison said.

The proposed change to the Environmental Appeals Board process could be made public as soon as the coming week, according to the three people familiar with the matter. It would then be open for public comment, a period that typically lasts 60 to 90 days, before being finalized and implemented.

For more news on climate and the environment, follow @NYTClimate on Twitter.

Coral Davenport covers energy and environmental policy, with a focus on climate change, from the Washington bureau. She joined The Times in 2013 and previously worked at Congressional Quarterly, Politico and National Journal. @CoralMDavenport  Facebook

A version of this article appears in print on , Section A, Page 16 of the New York edition with the headline: Plan to Limit Feedback On Permits for Pollution. Order Reprints | Today’s Paper | Subscribe

Leave a Reply

Your email address will not be published.