Author: Katerina E. Milenkovski
The United States Court of Appeals for the District of Columbia Circuit yesterday vacated US EPA's Cross-State Air Pollution Rule, finding that it violates federal law. The Cross-State Air Pollution Rule, commonly referred to as CSAPR or the Clean Air Transport Rule, had replaced US EPA's 2005 Clean Air Interstate Rule (CAIR), which was also remanded to EPA in 2008 for various problems.
CSAPR, like its predecessor, attempted to regulate the impact of sulfur dioxide and nitrogen oxides, air pollutants that travel across state boundaries and ultimately impact air quality in downwind states.
The Court noted that under the Clean Air Act, Congress has created a cooperative approach by which both the federal government and the states play significant roles. The federal government sets air quality standards and the states determine how to meet those standards by adopting emission limits and otherwise regulating emissions sources within their borders.
With CSAPR, EPA had identified 28 states, known as "upwind" states, and imposed requirements on those states to reduce emissions, primarily from coal and natural gas fired power plants, so as to improve air quality in "downwind" states. Ultimately, the court found that EPA had exceeded the authority granted to it by Congress in two respects. First, the court noted that Congress has only given EPA authority to require upwind states to reduce their own significant contributions to a downwind state's nonattainment. But under the CSAPR, upwind states may be required to reduce emissions by more than their own significant contributions to a downwind state's nonattainment. Thus EPA imposed massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text. Second, the Clean Air Act has always given the states the initial opportunity to implement reductions required by EPA. Under CSAPR, however, EPA imposed Federal Implementation Plans, or FIPs, to implement emission reduction obligations at the state level, usurping the state's ability to identify and make such reductions on its own. For both of these reasons, the court found that EPA had violated federal law and the CSAPR Rule must be vacated.
The court was careful to note that its decision "should not be interpreted as a comment on the wisdom or policy merits of EPA's Transport Rule," adding that it is not the court's job to set environmental policy. "Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here." The court pointed out that Congress could easily alter the Clean Air Act to allow the CSAPR rule to withstand challenge, but that "unless and until Congress does so, we must apply and enforce the statute as it's now written."
Click here to read the decision.
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