Federal Court Strikes Down Air Pollution Rule | Chemical & Engineering News
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Web Date: August 22, 2012

Federal Court Strikes Down Air Pollution Rule

Clean Air Act: EPA found to have exceeded its authority in rule to reduce harmful 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

A divided federal appeals court last week struck down an Environmental Protection Agency 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 in Washington, D.C., 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 and worsen air quality in downwind states.

Critics 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 showed 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 Clean Air Interstate Rule—a measure the same court had found unlawful in 2008. The court ordered EPA to craft new safeguards against power-plant smog and soot pollution that is transported across state lines, which it did with the Cross-State Air Pollution Rule.

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