EPA Seeks Rehearing Of Air Pollution Case

EPA is asking the full U.S. Court of Appeals for the District of Columbia Circuit to review a decision by three of its judges, who threw out a rule designed to reduce air pollution from coal-fired power plants that crosses state lines. In a 2-1 decision in August, the appeals court panel determined that the agency had overstepped its legal authority under the Clean Air Act and imposed standards without giving states an opportunity to issue their own implementation plans. The rule, issued in July 2011, caps power plant emissions of nitrogen oxides and sulfur dioxide in 28 states in the East, Midwest, and South. In seeking a rehearing by all eight judges on the appeals court, EPA contends that it is not appropriate to consider the implementation plan issue in this case. The three-judge appellate panel developed “regulatory policy out of whole cloth” and stepped into “the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies,” EPA argues.