EPA reviewing cross-state air pollution court decision

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Michael Bastasch DCNF Managing Editor
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The EPA is currently reviewing this week’s decision by a federal appeals court striking down the agency’s Transport rule.

Also known as the Cross-State Pollution Rule (CASPR), it requires many states to sharply reduce sulfur dioxide and nitrogen oxide emissions from power plants, including coal-fired and natural gas-fired plants.

“EPA is reviewing the 2-1 decision by the U.S. Court of Appeals for the District of Columbia overturning the Agency’s Cross State Air Pollution Rule. … When that review is complete, EPA will determine the appropriate course of action,” the agency said in a statement.

The court ruled on Tuesday that CSAPR imposed emissions reduction requirements on states without regards to limits imposed by the Clean Air Act (CAA) and did not allow the states the initial opportunity to reduce emissions from sources within their own borders as required under the CAA.

“In this case, however, we conclude that EPA has transgressed statutory boundaries,” according to the opinion by Circuit Judge Brett Kavanaugh. “Therefore, the Rule must be vacated.”

“Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute,” wrote Kavanaugh.

The court ordered the EPA to use the 2005 Clean Air Interstate Rule until an alternative approach can be found.

“EPA remains committed to working with states and the power sector to address pollution transport issues as required by the Clean Air Act,” according to the EPA.

Power generators argued the EPA’s rule didn’t give them enough time to design and install the required pollution control equipment.

A group of fourteen states, led by Texas, as well as the National Mining Association and the International Brotherhood of Electrical Workers, challenged the EPA as well. These groups argued that the rule put an undue financial burden on power producers and could lead to reliability problems in the power market as companies are forced shut down older plants.

“The ruling also calls attention to a troubling but now unmistakable pattern of irresponsibility by a regulatory agency that is once again operating outside the explicit bounds of the law,” Hal Quinn, president and CEO of the National Mining Association in a statement.

“It should not require repeated rulings by federal courts to restrain EPA’s regulatory overreach,” he concluded.

The Cross-State Air Pollution was issued last year to reduce harmful power plant emissions reaching Americans in downwind states, thereby protecting public health. The rule also established a cap and trade system whereby power producers could buy, sell, and trade pollution permits.

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