EPA says cross-state ruling would 'gravely undermine' Clean Air Act enforcement

Posted: Apr 3, 2013

Written by

Jeremy P. Jacobs, E&E
Cross state pollution

If an appeals court ruling throwing out U.S. EPA's cross-state air pollution rule stands, it will have "serious adverse consequences" for air quality in the United States, the agency told the Supreme Court on Friday.

EPA, along with public health groups, is asking the high court to review the U.S. Court of Appeals for the District of Columbia Circuit's 2-1 ruling last August that threw out EPA's Cross-State Air Pollution Rule, or CSAPR, which was designed to address pollution that drifts across state boundaries (Greenwire, March 29).

The agency filed its petition to the court late Friday and argued that the stakes for the case are high. The D.C. Circuit, Solicitor General Donald Verrilli wrote, made a "series of fundamental errors that, if left undisturbed, will gravely undermine the EPA's enforcement of the Clean Air Act."

CSAPR was a key part of EPA's agenda during President Obama's first term, and the ruling was a blow to the administration. The court held that the regulations violated the Clean Air Act because they potentially required a state to reduce emissions by more than it was proportionally contributing to another state's air pollution.

"The transport rule includes or excludes an upwind state based on the amount of that upwind state's significant contribution to a nonattainment area in a downwind state," Judge Brett Kavanaugh wrote. "That much is fine. But under the rule, a state then may be required to reduce its emissions by an amount greater than the 'significant contribution' that brought it into the program in the first place. That much is not fine" (Greenwire, Aug. 21, 2012).

The court also held that CSAPR circumvented a state's authority to develop its own plan for reducing emissions by granting EPA too much authority to draft its own federal implementation plan before deferring to the state.

Verrilli questioned both points. On the first, he said the challengers failed to bring up those issues in administrative proceedings and so they should not be considered by the D.C. Circuit.

On the second, he said Kavanaugh's opinion "disregarded mandatory statutory deadlines for States to adopt [state implementation plans] with good neighbor provisions and for EPA to issue [federal implementation plans] when it finds that a state has failed to do so (or has done so inadequately)."

EPA has had trouble crafting an interstate air program that stands up to legal challenges. Before CSAPR, the Bush-era Clean Air Interstate Rule, or CAIR, was rejected by the D.C. Circuit in 2008 for not going far enough to protect public health.

CAIR, however, is currently in place while EPA contests the D.C. Circuit ruling on CSAPR.

Verrilli concluded that if the Supreme Court doesn't correct the D.C. Circuit's ruling, it could delay "by years" the ability of downwind states to comply with ambient air standards.

"Most fundamentally, the court of appeals' errors will seriously impede the EPA's ability to deal with a grave public health concern," the solicitor general wrote.

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