On the Docket, Top Story

Court Strikes Down EPA Air Rule

By Steven Johnson | ECT Staff Writer Published: August 21st, 2012

Saying the Environmental Protection Agency overstepped its legal authority, a federal appeals court struck down a sweeping Obama administration air quality rule governing emissions that cross state lines.

A federal court vacated an EPA rule regulating airborne interstate emissions. (Photo By: Basin Electric Power Cooperative)

A federal court vacated an EPA rule regulating airborne interstate emissions. (Photo By: Basin Electric Power Cooperative)

In a 2-1 ruling announced Aug. 21, the U.S. Court of Appeals for the District of Columbia Circuit said EPA violated the Clean Air Act in issuing the Cross-State Air Pollution Rule in August 2011.

It returned the rule to the agency for more review and ordered it to continue to apply a Bush administration-era rule in its place.

“We conclude that EPA has transgressed statutory boundaries,” the court said in EME Homer City Generation v. Environmental Protection Agency.

Electric cooperatives said the decision shows EPA failed to take a reasonable and balanced approach toward implementing the law, which could have prevented unnecessary lawsuits and multiple rounds of rulemakings.

“According to the ruling issued today, as drafted by the EPA, the Cross-State Air Pollution rule was unworkable, unfair and unlawful. The D.C. Court of Appeals has rightly ordered EPA back to the drawing board,” said NRECA CEO Glenn English.

In court petitions, NRECA and several co-ops challenged the rule’s legality, contending it was based on flawed models and treated different parts of the country in an arbitrary manner.

The appellate court stayed the rule just before it took effect on Jan. 1, and less than five months after EPA announced it.

The rule established emissions limits and a tradable allowance program for sulfur dioxide and nitrogen oxides that contribute to ozone formation in 27 states, mostly east of the Mississippi River. EPA estimated compliance costs at $800 million in 2014.

At the center of the court opinion was a “good neighbor” provision, which calls for upwind states to limit power plant emissions that cross state lines and impair the ability of downwind states to meet air quality standards.

By requiring upwind states to make more than their appropriate share of reductions, EPA exceeded its authority under Clean Air Act, the court said.

It also said EPA failed to give states the initial opportunity to make required emissions reductions within their own borders by setting up a system of federal implementation plans, telling them where and how to make cuts.

For the time being, the Clean Air Interstate Rule will be the law on interstate emissions. A federal court struck down that rule in 2008, but allowed its provisions to stand while EPA reworked the regulations.

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