Environmental Regulation, Top Story

Supreme Court to Review EPA Rule

By Cathy Cash | ECT Staff Writer Published: June 28th, 2013

The Supreme Court will weigh in on a controversial rule to slash interstate emissions from coal generation that an appeals court had thrown out for its “over-control” by the Environmental Protection Agency.

The Supreme Court will weigh in on a controversial rule to slash interstate emissions from coal generation. (Photo By: Getty Images)

The Supreme Court will weigh in on a controversial rule to slash interstate emissions from coal generation. (Photo By: Getty Images)

The case involving EPA’s Cross-State Air Pollution Rule is expected to proceed before the high court this fall with a decision likely in spring 2014.

NRECA joined in a May 29 industry and labor brief that had urged the justices to uphold the appeals court’s 2012 decision. The U.S. Court of Appeals for District of Columbia Circuit rejected the rule and directed EPA to consider data showing state air quality improvements, state plans to reduce air pollution, and that states cannot be asked to clean up more than their fair share of emissions.

“We think the appeals court decision was very well-reasoned and should be upheld by the high court,” said Rae Cronmiller, NRECA senior principal environmental counsel.

The rule was EPA’s solution to limit emissions of sulfur dioxide and nitrogen oxides from upwind states that hamper downwind states from meeting national ambient air quality standards in accordance with the Clean Air Act’s “good neighbor” provisions.

The agency’s first attempt at such a rule, the Clean Air Interstate Rule or CAIR, was rejected by the same appeals court in 2008 for allowing too much flexibility to emitters. The court has allowed CAIR to remain in force until EPA develops a replacement that fits within its legal authority.

Coal generators are looking for the justices to side with the lower court in finding that EPA overstepped its legal authority in issuing the Cross-State Air Pollution Rule. One key argument involves “cooperative federalism,” where states take the lead in developing plans to meet federal emission reduction target. EPA, for instance, rejected certain state plans and installed its own.

“We hope the Supreme Court will reaffirm and perhaps even extend the ruling of the appellate court in the cross-state air pollution case,” said Scott Segal, director of the Electric Reliability Coordinating Council and head of the policy resolution group at Bracewell & Giuliani. “National guidance could be helpful.”

The American Lung Association, which challenged industry’s opposition to the EPA rule, believes the Supreme Court will find the agency followed the court’s directions from the CAIR ruling in drawing up the Cross-State Air Pollution Rule and stayed within the law.

“We thought EPA went through a thorough and careful review” in developing the second rule, said Janice Nolen, ALA assistant vice president for national policy. “This is a really important tool EPA was putting in place to reduce pollution blowing across state lines.”

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