Environmental Regulation, Top Story

Court Won’t Rehear EPA on Air Rule

By Steven Johnson | ECT Staff Writer Published: January 28th, 2013

A federal appeals court will not reopen a decision that struck down the Environmental Protection Agency’s sweeping Cross-State Air Pollution Rule.

A court denied EPA's request to revisit a decision that struck down a rule affecting power plant emissions that cross state lines. (Photo By: iStockphoto)

A court denied EPA’s request to revisit a decision that struck down a rule affecting power plant emissions that cross state lines. (Photo By: iStockphoto)

In a two-sentence order released Jan. 24, the U.S. Circuit Court of Appeals for the District of Columbia denied EPA’s request for reconsideration by the full court.

A three-judge panel of the circuit court had vacated the rule last August, saying EPA overstepped its authority under the Clean Air Act.

The rule would have had a huge impact on power plants by setting new limits on sulfur dioxide and nitrogen oxides in 27 states, mostly east of the Mississippi River. EPA estimated compliance costs at $800 million in 2014.

NRECA and several electric cooperatives filed lawsuits against the rule, contesting its legality and noting that it treated different parts of the country in an arbitrary and unfair manner.

“We’re pleased that the court denied EPA’s request for reconsideration,” said Rae E. Cronmiller, NRECA environmental counsel. “The rule as written was fundamentally flawed and based on assumptions that simply did not correspond to real-world situations.”

In rejecting the rule, the court held 2-1 last August that EPA was forcing upwind states to make more than their required share of reductions in power plant emissions that contribute to ozone formation. Those emissions can impair the ability of downwind states to meet air quality standards.

EPA also used questionable calculations to develop an allocation of tradable emissions allowances that accompanied the new emissions limits. The system would have shortchanged some G&Ts of their proper amount of allowances, NRECA added.

In a statement, EPA said it was disappointed that the court did not grant a petition for rehearing, and is considering additional options. The agency can appeal to the U.S. Supreme Court.

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