Issue Date: August 27, 2012 | Web Date: August 23, 2012
Air Pollution Rule Struck Down
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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