Court of Appeals Deals Second Blow to EPA on Clean Air Regs

For the second time, a court has thrown out EPA efforts to address pollution from power plants in 'clean-air' states that cause pollution downwind. This time, the Cross-State Air Pollution Rule was the victim.

2 minute read

August 25, 2012, 9:00 AM PDT

By Irvin Dawid


"Twice in eight years" is how the New York Times editorial addressed Tuesday's (August 21) Appeal Court rejection of the EPA's new rule to "reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions in order to help States meet their National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter (PM2.5)", as defined by the 2005 Clean Air Interstate Rule.

The Cross-State Air Pollution Rule was designed to replace the CAIR. It "requires states to significantly improve air quality by reducing power plant emissions that contribute to ozone and/or fine particle pollution in other states."

"In a 2-to-1 ruling, a panel of the United States Court of Appeals for the District of Columbia said the E.P.A. had exceeded its authority in the way it apportioned the cleanup work among 28 upwind states. The court said the E.P.A.'s rule also violated the Clean Air Act because it did not let the states submit their own plans to comply and imposed a federal plan instead.

The Environmental Protection Agency was trying to address a problem that has vexed the air pollution control system for at least three decades: how to deal with states whose own air meets standards but whose power plants, refineries and other industrial plants emit sulfur dioxide and nitrogen oxide pollutants that - wind-aided - prevent neighboring states from attaining the level of cleanliness required under federal law.

"At the Sierra Club, Mary Anne Hitt, director of the group's Beyond Coal Campaign, said in a statement, "Americans have been waiting for the clean air they deserve for decades, and the court's ruling today further delays the Clean Air Act's promise of safe, breathable air for our children."

"She estimated the rule could have prevented 34,000 premature deaths a year."

EPA is left with two choices: Go back to the drawing board and hope they don't strike out in a third attempt to satisfy the court - that process will take about three or four years, or appeal the ruling.

Wednesday, August 22, 2012 in The New York Times - Environment

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