U.S. court strikes down federal pollution regulation

Decision says EPA overstepped its legal authority with cross-states rule

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The federal rule limiting power plant soot and smog-producing emissions that cause unhealthy levels of pollution in neighboring states has been struck down by a divided U.S. Court of Appeals in Washington, D.C.

The majority decision of the three-judge panel said the U.S. Environmental Protection Agency overstepped its legal authority by requiring excessive emission reductions under the Cross-State Air Pollution Rule, or CSAPR, in August 2011.

The rule required 28 Eastern, Midwestern and Southern states to significantly reduce smog- and soot-producing pollution emissions that prevailing winds can carry across state lines. Fifteen of those states, along with industry groups, brought the court challenge. Nine states, all to Pennsylvania's north, east and south, and the District of Columbia argued in support of the EPA rule.

Pennsylvania, which both receives air pollution from coal-burning power plants in upwind states and exports it from nearly 50 coal-burning power plants to downwind states to the north and east, was not part of the case.

Kevin Sunday, a spokesman with the state Department of Environmental Protection, said the agency is "reviewing the decision and determining its impact on our regulatory program." He said the DEP's comments on the proposed rule in 2011 raised the same questions as the appeals court did in its opinion.

Industry and utility groups, coal company executives and Republican politicians, including Pennsylvania Sen. Pat Toomey, praised the appeals court ruling for reining in what they say is an over-aggressive EPA.

"I am pleased with today's decision and hope it will send a strong message to the EPA as it reconsiders its regulatory approach," Mr. Toomey said in a statement Tuesday.

Scott Segal, director of the Electric Reliability Coordinating Council, said the ruling properly recognizes states' rights and roles in formulating air pollution controls, and as such "the importance of the ruling cannot be overstated."

But environmental organizations said the court's ruling imperils smokestack controls and delays important air pollution reductions that could prevent more than 30,000 premature deaths, and hundreds of thousands of illnesses a year in Eastern states, including Pennsylvania.

About half of the fine particle pollution in southwestern Pennsylvania's air is blown in from other upwind states.

"The (appeals court) decision is contrary to clear language of the Clean Air Act and the court's own precedent," said Joe Osborne, legal director for the Pittsburgh-based Group Against Smog and Pollution. "As a result, millions of Americans will be denied the additional health benefits this rule would have provided. It's not just bad for public health, industry and regulators have to adjust to yet another abrupt change in the rules regulating interstate pollution."

Annual health benefits from the regulation would be between $120 billion and $280 billion, according to the EPA, versus $2.8 billion in costs.

The EPA issued its 2011 transport rule under the federal Clean Air Act's "Good Neighbor" provisions, which allow the agency to limit emissions from power plants in a state if they cause harmful pollution in a neighboring state. The rule's provisions -- which many states are already meeting according to the EPA -- would reduce power plant emissions of sulfur dioxide by 73 percent and nitrogen oxide emissions by 53 percent from 2005 levels.

But the 60-page court decision by Judges Brett Kavanaugh and Thomas Griffith ruled that the EPA's rule required the upwind states, like Texas, to make higher emissions reductions than needed to reduce the harmful health effects in neighboring states, and also did not give states an opportunity to implement the emissions reductions on their own before imposing federal implementation plans.

A strongly worded 44-page dissenting opinion by Judge Judith Rogers said the court's majority failed to follow its own precedents, exceeds its own jurisdictional limits and disregards the "plain text of the Clean Air Act."

Doug Biden, president of the Electric Power Generation Association in Pennsylvania, said the court ruling will do little more than postpone power plant emission controls, many of which have already been installed to meet required mercury emissions reductions.

He also said the ruling will have little effect on the mining of coal in the Appalachian region.

"I'm not sure it will mean much in the long run," Mr. Biden said. "It will mean a delay in full implementation of whatever rule is written but that's it. Some power plants in places like Texas may be breathing easier, and it may buy some time for a few here in Pennsylvania, but I don't see a lot benefitting because many have already put in controls."

The court ruling left in place a much weaker, 2005 air pollution transport rule authored by the George W. Bush administration. In 2008, an appeals court found that the 2005 rule didn't meet the human health protections required under the Clean Air Act.

The EPA issued a statement Tuesday saying it is reviewing the court decision and "remains committed to working with states and the power sector to address pollution transport issues as required by the Clean Air Act."

John Walke, clean air director for the Natural Resources Defense Council, urged the EPA to appeal the ruling.

"The dissenting judge correctly follows the Clean Air Act and prior rulings by this court," Mr. Walke said. "The majority opinion is an outlier at odds with the court's own rulings as well as the Clean Air Act."

He said that unless the decision is overturned it will take several years for the EPA to adopt a replacement rule.

nation - environment

Don Hopey: dhopey@post-gazette.com or 412-263-1983.


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