EPA, ENVIRO. GROUPS CALL ON SUPREME COURT TO REVIEW CSAPR RULING

Tamar Hallerman
GHG Monitor
4/5/13

The Environmental Protection Agency is petitioning the U.S. Supreme Court to overturn a federal appeals court ruling that vacated its ‘good neighbor’ rulemaking aimed at limiting criteria pollutants emitted from coal plants like sulfur dioxide and nitrogen oxide. EPA filed a writ of certiorari March 29 asking the high court to reconsider the U.S. Court of Appeals for the District of Columbia Circuit’s August decision that overturned and remanded the Agency’s Cross-State Air Pollution Rule (CSAPR). In its petition, EPA said the federal appeals court “committed a series of fundamental errors that, if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.”

The EPA said the lower court ruled on several elements of the rulemaking that it did not have the authority or the scope to look at. “If not corrected, the decision … will have serious adverse consequences,” the appeal states. “Its imposition of non-textual barriers to implementation of the good neighbor provision could delay by years the ability of downwind states to comply with [National Ambient Air Quality Standards], and could in some cases make it impossible for those states to meet statutory deadlines for doing so,” the appeal says, adding that the ruling will “seriously impede the EPA’s ability to deal with a grave public health problem.”

Greens File Writ in Support of EPA

The EPA was joined by a coalition of health and environmental groups—including the Environmental Defense Fund, Natural Resources Defense Council and American Lung Association—which called separately for the Supreme Court to consider the case. The groups touted the rulemaking’s potential health benefits, saying that it would save up to 34,000 lives annually, prevent 5,000 heart attacks and provide up to $280 billion in annual health benefits. “We have asked the U.S. Supreme Court to review the lower court’s decision given the profound public interest in ensuring healthier, longer lives for the 240 million Americans afflicted by power plant pollution and given the appeals court’s sharp deviation from settled legal principles,” EDF Counsel Sean Donahue said in a statement.

In its writ of certiorari, the coalition said the court of appeals’ ruling is “riddled with error.” They argued that the lower court ruling imposed a “series of rigid strictures” on EPA’s authority that do not have any legal precedent and that complicate the rule’s future implementation. “The harmful effects of these erroneous rulings are far-reaching. Downwind states need the protection the Rule afforded in order to meet their own statutory obligations and to protect the health and welfare of their citizens,” the coalition said. “The decision will complicate the crafting of a workable rule that can deliver the protection downwind states were promised decades ago when the [Clean Air Act’s] ‘good neighbor’ provision was enacted and amended.”

Appeals Court Ordered EPA to Re-Do Standard

Finalized in summer 2011, CSAPR would have required 28 Eastern and Midwestern states to sharply reduce SO2 and NOx emissions by 73 percent and 54 percent below 2005 levels, respectively, beginning in January 2012. Those pollutants are emitted from tall smokestacks at coal plants and contribute to acid rain, soot and smog and are easily transportable across state lines and can harm air quality in downwind states. CSAPR would have created a system where states could buy, sell and trade pollution credits tied to reductions in SO2 and NOx emissions, where ultimately the cleanup work would be done where it is cheapest and easiest to do so. However, a group of upwind states, utilities and coal producers sued the agency, and on Dec. 30, 2011, two days before CSAPR was slated to go into effect, the court stayed the rulemaking. A group of mostly downwind states and major cities, including some utilities like Exelon, stood in support of EPA.

But in an Aug. 21, 2012, split ruling, two of the three judges that heard the case ruled in favor of the petitioners and threw out the rulemaking, arguing that the agency exceeded its authority under the ‘good neighbor’ provision of the Clean Air Act. The majority argued that upwind states should make emissions reductions in proportion to the size of their contributions to the downwind states’ extra pollution. The majority also argued that EPA was at fault for not allowing states the opportunity to first submit their own compliance plans to meet the standard before stepping in to offer a federal plan. The court ordered EPA to go back to the drawing board and craft a new rulemaking, in the meantime upholding the Bush-era Clean Air Interstate Rule, which that same court threw out in 2008. EPA had filed for a rehearing with the federal court in October, but that request was denied in January.