Marten Law: EPA Finalizes New Interstate Air Pollution Rule for Power Plants

Dustin Till   By Dustin Till, Associate, Marten Law Group PLLC

"The Environmental Protection Agency (EPA) has published a new rule, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 48208, addressing the interstate transport of sulfur dioxide (SO2) and nitrogen oxides (NOx) from fossil fuel-fired power plants in 27 Eastern states," writes Dustin Till. "The Cross-State Air Pollution Rule (CSAPR) is EPA's latest attempt to address air pollution from power plants in 'upwind' states that contributes to air quality violations in 'downwind' states. Such emissions impact the ability of downwind states to comply with the Clean Air Act's ambient air quality standards for particulate matter and ground-level ozone."

"CSAPR replaces EPA's 2005 Clean Air Interstate Rule (CAIR), which the U.S. Court of Appeals for the District of Columbia struck down in 2008, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). The court kept CAIR in place temporarily while EPA developed a new rule addressing the interstate transport of air pollution," explains the author. "CSAPR, however, is already facing opposition in Congress. Earlier this month, the House introduced-but later withdrew-an appropriation bill (H.R. 2584 4) that would have stripped funding for the implementation of a number of existing EPA air rules, and the CSAPR-though not yet finalized while H.R. 2584 was under consideration-would likely be on the same list eventually."

"Industry reactions to EPA's new rule are mixed. Generally, utilities in regions dependent on older coal-fired plants have been the loudest opponents of EPA's rules, while many utilities that obtain little of their power from coal have supported the rules," Till points out. "For example, American Electric Power Co. Inc. is lobbying lawmakers to extend the deadlines and eliminate some of the requirements of the rules, while Duke Energy Corp., the nation's sixth-largest utility, has praised EPA for its use of market-based emission trading in the new rule. Indeed, industry opinion on the new rule is so divided that the Edison Electric Institute-the primary industry trade group for the utility industry-has declined to give an opinion on CSAPR."

As a lawyer with the Marten Law Group, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law Group writing ongoing articles for Lexis Nexis' Environmental Law and Climate Change Center. Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.

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