On the Docket, Top Story

Court Delays Sweeping Air Rule

By Steven Johnson | ECT Staff Writer Published: January 9th, 2012

A federal court has temporarily blocked the Obama administration’s sweeping air quality rule that governs emissions of sulfur dioxide and nitrogen oxides in the eastern United States.

A federal appeals court has put a temporary hold on a major cross-state air emissions program. (Photo By: Oglethorpe Power Corp.)

A federal appeals court has put a temporary hold on a major cross-state air emissions program. (Photo By: Oglethorpe Power Corp.)

On December 30, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit granted a motion to delay the Cross-State Air Pollution Rule pending a full challenge to the regulations.

The order is not a final verdict―the court asked parties in the case to submit proposed briefing schedules by January 17 that would enable it to hear the case in April.

Kirk Johnson, NRECA senior vice president, government relations, said NRECA will continue to be active in pointing out the flaws of the rule, which was scheduled to take effect Jan. 1.

NRECA  filed a petition as well to review the rule in federal court last October, and in a separate petition to EPA asked it to reconsider numerous aspects of the rule which appeared to be flawed, raising both procedural and substantive issues.

“This is only a first step, but we are pleased the court recognized that there was sufficient merit to the plaintiffs’ arguments to warrant a stay of the rule,” Johnson said.

The Bush-era Clean Air Interstate Rule, earlier rejected by the same federal court that issued the stay, will continue to be in effect until the court rules on the new regulations.

Energy Future Holdings of Dallas is the named plaintiff in the case, though the court consolidated a large number of lawsuits filed against the new rule.

The rule applies to Texas and 26 other states by setting new caps on sulfur dioxide and nitrogen oxides that cross state lines through a system of tradable allowances. EPA estimated the costs of the rule in 2014 at $800 million, in addition to $1.6 billion per year in capital investments underway as part of the Clean Air Interstate Rule.

NRECA has said that the rule contains unattainable compliance timetables and is full of miscalculations that shortchange some G&Ts on emissions allowances.

The association also told EPA in its October filing that the agency also should have convened a small business review panel under the Regulatory Flexibility Act so small entities like co-ops could contribute more to the rulemaking process.

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