Air Pollution Rule Struck Down | August 27, 2012 Issue - Vol. 90 Issue 35 | Chemical & Engineering News
Volume 90 Issue 35 | p. 10 | News of The Week
Issue Date: August 27, 2012 | Web Date: August 23, 2012

Air Pollution Rule Struck Down

Clean Air: Court says EPA went too far with rule to reduce emissions that cross state lines
Department: Government & Policy
News Channels: Environmental SCENE
Keywords: Clean Air Act, EPA, cross-state air pollution, appeals court
EPA must now rework its regulation to handle air pollution that drifts across state lines.
Credit: Shutterstock
This is a photo of a smokestack.
EPA must now rework its regulation to handle air pollution that drifts across state lines.
Credit: Shutterstock

Adivided federal appeals court last week struck down an EPA rule designed to reduce power-plant air pollution that crosses state boundaries, saying the agency had exceeded its authority under the Clean Air Act.

In a 2-1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with more than three dozen challengers to EPA’s Cross-State Air Pollution Rule. The court said the agency had imposed “massive emissions reduction requirements” on upwind states without regard to limits in its authority imposed by the Clean Air Act.

“Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority,” Judge Brett M. Kavanaugh wrote in the majority opinion.

EPA’s rule, which was finalized in July 2011, requires 28 states mostly in the eastern U.S. to reduce emissions of sulfur dioxide and nitrogen oxides that cross state lines.

Critics have charged that EPA’s rule puts an undue financial burden on utilities and threatens the reliability of the electric grid by forcing companies to shut down some older power plants and take others off-line to install new pollution controls.

EPA has not shown sufficient respect for or deference to state programs, says Scott H. Segal, director of the Electric Reliability Coordinating Council, a coalition of utilities and energy companies.

“When EPA takes liberties with its legal authority, the result is higher prices for consumers, businesses, schools, and hospitals,” Segal remarks. “At a time of economic recession, the country cannot afford sloppy rule-making of this sort. EPA can and should do better.”

Activist groups have claimed that EPA’s Cross-State Air Pollution Rule would prevent thousands of premature deaths and save the economy tens of billions of dollars per year in health costs.

“This decision allows harmful power-plant air pollution to continue to aggravate major health problems and foul up our air,” says John D. Walke, clean air director at the Natural Resources Defense Council, an environmental group.

The ruling temporarily leaves in place the George W. Bush Administration’s 2005 Clean Air Interstate Rule. It also sends EPA back to the drawing board to craft a viable replacement. The agency says it is reviewing the decision and “remains committed to working with states and the power sector to address pollution transport issues as required by the Clean Air Act.”

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read the opinion (Mon Aug 27 11:49:47 EDT 2012)
This article mis-states the courts reasoning for striking down CASPAR. The article implys it was the amount of reductions with which the court took issue. That is not true. Namely the court stated that EPA did not give upwind states a chance to draw up their own plans to meet the new requirements. The court took no issue with the "massive emissions reduction requirements" or how the EPA set the requirements, just that the agency didn't give states a chance to decide how to meet those limits on their own before the EPA set industry/facility emitter limits themselves. The court used this statutory exceedence to make the point that implementing controls on individual emitters may end up reducing some upwind states emissions by more than the proportion they are contributing to downwind states pollution by implementing an emitters rule across the states instead of letting states try to plan their own emissions reductions, it makes some states reduce their emissions by more than simply the amount causing exceedences in their immediately down-wind neighbors.
Reply »
Tom Horn (Wed Aug 29 17:40:08 EDT 2012)
Here is another incidence of the courts ruling in favor of known pollutors. We are fouling the air, the ground water at a rate that will increasingly effct life on earth.
Chad (Thu Aug 30 02:53:08 EDT 2012)
So you are saying more delays, as the upwind polluting states diddle and dawdle as long as they can keep the legal ball rolling? How about this? The upwind polluter states can delay all they like - and are fined $1,000,000 per day until they get the job done. It is amazing how fast things can get done when you force polluters to internalize their costs.

Richard Haimann, P.E., D.WRE., CPSWQ, CPESC (Wed Sep 05 12:53:13 EDT 2012)
It is estimated that 47% of the non point source of nitrogen loading to Long Island sound is from aerial deposition (Derived from data in: New York State Department of Environmental Conservation, Connecticut Department of Environmental Protection; A Total Maximum Daily Load Analysis to Achieve Water Quality Standards for Dissolved Oxygen in Long Island Sound; December 2000). Some of this likely crosses state lines before depositing within the watersheds (also interstate) that flow into Long Island Sound. To eliminate the impairment in Long Island Sound, the air source will need to be reduced. Currently, the Clean Air Act does not require that emission permits consider contributions to impairments of water bodies. This court decision further weakens the EPA's ability to reduce impairments in receiving waters and will force EPA office of Wastewater Management to focus on stricter controls on the sources that they can regulate under the Clean Water Act, which will increase the dischargers' costs substantially and likely cause total compliance costs to be greater than if EPA could integrate their permitting and regulatory authorities across water, air, and state lines. The Clean Air Act and Clean Water Act need to be revamped based on current science in order to align their goals and allow the most cost effective regulation of pollutants and preservation (or restoration) of environmental quality and quality of life within U.S. communities.

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