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August 23, 2012
DC Appeals Court Strikes Down Another EPA Regulation
    by Robert Kropp

The Court decides that the Cross-State Air Pollution Rule exceeds the Environmental Protection Agency's statutory authority, but a dissenting opinion argues that the Court has trampled on precedent.

Despite having affirmed in June that the that the Environmental Protection Agency (EPA) was "unambiguously correct" in interpreting the Clean Air Act as authorizing it to regulate greenhouse gas (GHG) emissions and other pollutants, the US Court of Appeals in Washington struck down the Agency's Cross-State Air Pollution Rule (C-SAP) this week, after granting a delay in January of the deadline for coal-burning power plants to comply with the rule.

C-SAP would have required that Texas, as well as 26 states in the eastern US, reduce power plant emissions that contribute to pollution in other states. According to EPA, coal-burning power plants account for 98% of sulfur dioxide and 92% of nitrogen oxide emissions affected by the regulation.

EPA estimated that by requiring significant reductions in sulfur dioxide (SO2) and nitrogen oxide (NOX) emissions that cross state lines, the rule will result in $120 to $280 billion in annual health and environmental benefits in 2014. The savings, EPA asserts, outweigh the estimated annual costs, which are expected to be $800 million in 2014 as well as $1.6 billion per year in capital investments that are already underway.

In his opinion, Appeals Court Judge Brett Kavanaugh wrote, "EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text," which, he argued, exceeded its statutory authority.

In her dissent, Judge Judith Rogers called the decision "a trampling on this court’s precedent on which the Environmental Protection Agency…was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court."

In response to the Court's decision, Vickie Patton, General Counsel of the Environmental Defense Fund (EDF), stated, "The court's decision imperils long overdue clean air safeguards for millions of Americans. EDF will immediately seek corrective action to protect the lives of Americans harmed by power plant smokestack pollution."

And in The Huffington Post, Mary Anne Hitt of the Sierra Club's Beyond Coal campaign, wrote, "We urge the Environmental Protection Agency to petition for rehearing and strive to preserve the public health benefits that the rule promises. The Environmental Protection Agency can and must seek a rehearing of this critical life saving rule."


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