Aug 21, 2012 No Comments ›› Pat Dollard
(THE HILL) A federal court has struck down an Environmental Protection Agency rule that forces cuts in soot- and smog-forming power plant emissions that cross state lines, dealing a major blow to the White House’s air quality agenda.
The U.S. Court of Appeals for the District of Columbia Circuit vacated the Cross-State Air Pollution Rule that forces cuts from plants in 28 states in the eastern half of the country, finding that it exceeds EPA’s powers under the Clean Air Act. The 2-1 court decision Tuesday is a victory for industry groups, some states and GOP lawmakers, who alleged the rule would create economic burdens and force the closure of substantial numbers of coal-fired power plants.
The court decision instructs EPA to continue administering a less aggressive, George W. Bush-era rule called the Clean Air Interstate Rule pending the creation of a “valid replacement.”
The judges said the Obama administration rule allows EPA to “impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text.”
Several states, including Texas, Alabama and Georgia, challenged the rule alongside the National Mining Association, power companies and other parties. But other states such as New York and Delaware, as well as environmental groups, joined the case in defense of EPA.
Capitol Hill Republicans have taken aim at the rule, passing legislation in the House to scuttle it and force EPA to re-write the restrictions. But a bid to nix the rule in the Senate fell well short of the needed votes last November.
Environmentalists lamented the ruling.
“The court’s decision significantly imperils long overdue clean air safeguards for millions of Americans,” said Vickie Patton, general counsel of Environmental Defense Fund (EDF), in a statement. “EDF will immediately seek corrective action to protect the lives of Americans harmed by power plant smokestack pollution.”
EPA, when finalizing the rule in the summer of 2011, said substantially cutting sulfur dioxide and nitrogen oxide emissions would bring public health benefits that far outstrip the projected costs.
The agency estimated that the rule, when phased in, would prevent up to 34,000 premature deaths, 15,000 nonfatal heart attacks and 19,000 cases of acute bronchitis annually.
The two judges who vacated the rule said they were not commenting on the “wisdom or policy merits” of the rule.
They said they vacated the rule because it runs afoul of EPA’s power under the air law’s “good neighbor” provisions, which enable the agency to force reductions in emissions that pollute the air in downwind states.
They noted that Congress gave EPA the power to require “upwind” states to reduce pollution that contributes to downwind states’ failure to meet federal air quality standards. However, under the Cross-State rule, the judges said that “upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment.”
The judges also said the rule didn’t give states an initial opportunity to make reductions from pollution sources within their borders. “Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act,” the ruling states.
The decision was cheered by the Electric Reliability Coordinating Council, a group that represents power companies with coal-fired plants. The group said the ruling is a shot across EPA’s bow that leaves adequate protections in place.
“Not only in this interstate rule case, but also in regional haze rules, consideration of implementation plans, and in permitting decisions, EPA has not showed sufficient respect or deference to state programs. Today’s decision is a stern warning against EPA’s recent views,” the group said.