EPA FILES FOR REHEARING ON CROSS-STATE VERDICT

Agency Hopes to Uphold Rulemaking Limiting SO2, NOx Emissions

Tamar Hallerman
GHG Monitor
10/12/12

The Environmental Protection Agency late last week asked a U.S. appeals court to rehear a case that resulted in a decision to throw out an agency rulemaking aimed at curbing SO2 and NOx pollution from coal and gas-fired power plants. EPA Oct. 5 filed a petition for a rehearing “en banc,” requesting that the full the U.S. Court of Appeals for the District of Columbia review a recent ruling that vacated the agency’s Cross-State Air Pollution Rule (CSAPR). In a split decision, a three-judge panel ruled Aug. 21 in favor of a group of states, coal companies and utilities that argued that the agency exceeded its statutory 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.

Finalized in summer 2011, CSAPR, also known as the Transport Rule, would have required 28 Eastern and Midwestern states to sharply reduce SO2 and NOx emissions, pollutants that contribute to acid rain, soot and smog and are easily transportable across state lines. 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.

EPA in its rehearing petition cited dissenting judge Judith Rogers, who argued in August that the majority disregards precedents set by Congress, the Clean Air Act and the court and instead bases its ruling “on the court’s own notions of absurdity and logic.” In its petition, EPA said the court waded into issues that Congress previously legislated as something best addressed by the technical expertise of the Agency. “The panel’s decision upends the appropriate relationship of the judicial, legislative and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies,” EPA said. “Especially in light of the enormous public health and regulatory significance of the Transport Rule, these clearly are issues of ‘exceptional importance.”

EPA Seeks Eight-Judge Panel

EPA requested that all eight of the Court of Appeals’ judges hear the case, instead of the three that heard it in April. While “en banc” cases are relatively rare, they are primarily used when a case carries exceptional public importance or comes in conflict to prior decisions made by an appellate court. EPA argued that both criteria applied in this case. In order for the case to be heard “en banc,” five of the eight judges must decide they want to take on the case, a move which could be a tall order, Danielle Baussan of the Center for American Progress pointed out in a blog post this week, given that five of the eight were appointed by Republican presidents. 

Green, Health Groups Support Retrial

Meanwhile, health and environmental groups filed a subsequent petition with the court as interveners in support of upholding CSAPR. The Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Clean Air Council and the American Lung Association, said they also seek a rehearing. The interveners said that the court departed from precedent established in previous court decisions on regional transport regulations. “This series of incompatible decisions… leaves this area of law, which affects the health of millions and the core responsibilities of states under the [Clean Air] Act, in grievous disarray,” they said in their petition. Supporters say CSAPR would, starting in 2014, save up to 34,000 lives annually and prevent 400,000 asthma attacks, achieving up to $280 billion in benefits per year, most via avoided healthcare costs. Critics of CSAPR argue that the benefits are exaggerated and that the $2.4 billion price tag could dramatically hurt the coal industry and the economy.