Appeals Court Blocks EPA Cross-State Pollution Rule

In another blow to the Obama administration’s environmental agenda, a federal appeals court is blocking an EPA rule that would force 28 eastern states to clean up the air drifting downwind into other states.

EPA’s Cross-State Pollution Rule would improve air quality for nearly 240 million Americans by tightening limits on the amount of smog-forming sulfur dioxide and nitrogen oxide pollution that power plants are allowed to emit. 

The legislation was supposed to take effect January 1 but was delayed pending this decision.

In its 2-to-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit says the EPA overstepped its authority with the rule, essentially because it didn’t give states a way of figuring out how to deal with problem first.

The majority writes: The EPA uses the “good neighbor provision” in the Clean Air Act to “impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.” 

Ironically, these same judges acknowledge that Americans are being denied safeguards guaranteed by the Clean Air Act.

"Our decision today should not be interpreted as a comment on the wisdom or policy merits of EPA’s Transport Rule.  It is not our job to set environmental policy.  Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set," the majority writes in its opinion.

The Cross-State Pollution Rule would cut sulfur dioxide emissions nationwide by 73%, compared with 2005 levels, and reduce nitrogen oxide emissions nationwide by 54%.

It was challenged by utilities including Southern Co., EME Homer City Generation, and Energy Future Holdings Corp. that complained they could not meet the new regulations in time and that it would cost too much money to meet. A coal industry group, the American Coalition for Clean Coal Electricity, claims it would jeopardize the US electricity supply by forcing the shut down of older coal-fired power plants. 

Never mind that many of these coal plants have already reached the end of their life expectancy, and that clean energy sources — as well as natural gas — are doing a great job picking up the slack.

Indeed, coal demand has eased so much this year that some mines are exporting most of their supply.

The Clean Energy Group, a coalition of progressive utilities that supply about 20% of US electricity, want the ruling to go through. The industry has anticipated the regulation for seven years, they say. "Regulatory certainty is critical for the electric power industry to be able to make long-term capital investments, and this rule provides the incentives needed to transition to cleaner generation." 

The Natural Resources Defense Council (NRDC) is calling on the EPA to appeal the ruling. 

“This rule would have prevented thousands of premature deaths and saved tens of billions of dollars a year in health costs, but two judges blocked that from happening and forced EPA to further delay long overdue health safeguards for Americans,” says John Walke, clean air director at the NRDC. “The majority opinion is an outlier at odds with the court’s own rulings as well as the Clean Air Act.”

For now, the interstate air pollution measure enacted under Bush, which phases in emissions reductions over a longer period of time, will remain in place until the EPA figures out its next steps. 

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