Greens win court case seeking stronger air pollution rules for brick makers

A federal appeals court on Friday ruled that parts of the Environmental Protection Agency’s (EPA) latest air pollution rule for brick makers don’t go far enough. 

The Court of Appeals for the District of Columbia Circuit accepted arguments from environmental groups, saying that the EPA acted improperly when it downplayed cancer risks from certain pollutants and set low pollutant thresholds for hydrogen chloride and hydrogen fluoride emissions.

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The three-judge panel also completely rejected arguments from the brick and tile industries that the 2015 rule was too strong.

Although the Obama administration wrote the rule and denied petitions in 2016 to rewrite it, the Trump administration defended it in court and has so far resisted pressure from the brick and tile industries to change it.

Central to the judges’ decision is their conclusion that while the EPA’s final rule might have set acceptable standards, the agency did not properly justify them.

“The EPA has not provided a sufficient record to determine that there is no cancer risk,” Judge David Sentelle, named to the bench by President Reagan, wrote for the unanimous court.

“This is not merely a situation in which the EPA relies on the results of scientific studies that were unable to demonstrate a cancer risk to ‘prove a negative.’ Rather, the EPA relies on the lack of any significant studies,” he wrote.

Sentelle made similar conclusions about hydrogen chloride and hydrogen fluoride emission risks.

“The EPA’s statement that ‘low confidence’ reference concentrations are suitable for regulatory purposes lacks any supporting reasoning,” Sentelle wrote about hydrogen fluoride.

The court instructed the EPA to reconsider the rule, with the judges’ arguments in mind.

The brick industry is one of the country’s significant contributors to hazardous air pollution. While the number of brick kilns has fallen from its peak, there are still hundreds in the United States. 

James Pew, a lawyer at Earthjustice who represented environmental groups in the case, said it is a major victory for fighting pollution.

“The agency just sort of made these patently arbitrary claims that it wouldn’t be a health problem. But, as the court found, there was no basis for those claims,” Pew said.

“People who live near brick kilns will get some relief, at last. EPA will have to do the standards that the Clean Air Act requires.”

In response to the ruling, an EPA spokeswoman said only that agency officials “are reviewing the decision and evaluating all available options.”

Republicans in Congress have backed the brick industry in its objections to the regulation.

The House voted in March, mainly along party lines, to pass a bill by Rep. Bill Johnson (R-Ohio) that would delay the EPA’s rule until all litigation options against it are exhausted.