A federal court ordered the Environmental Protection Agency (EPA) to rewrite its 2011 “Cross-State Air Pollution Rule,” handing a partial victory to 15 states challenging the burdensome regulations.
On July 28, the Washington, DC Circuit Court of Appeals ruled EPA’s rules governing ozone and sulfur dioxide drift across state lines were too broad. The rules effectively put downwind states out of compliance with air-quality standards.
EPA’s cross-state rule had been thrown out by a district court in 2012, but the U.S. Supreme Court overturned the district court’s ruling by a 6–2 vote in 2014. Although the Supreme Court upheld the broad outline of EPA’s rule, it remanded certain state challenges to the DC Court of Appeals for further review.
Emission Limits ‘Invalid’
The DC Court of Appeals ultimately found significant portions of EPA’s mandates untenable.
“EPA’s uniform cost thresholds have required states to reduce pollutants beyond the point necessary to keep downwind states in compliance with the agency’s pollution rules,” Judge Brett Kavanaugh wrote. “That violates the Supreme Court’s clear mandate.”
Kavanaugh found EPA’s 2014 sulfur dioxide emissions limits for Alabama, Georgia, South Carolina, and Texas were invalid, as were the ozone-season nitrous oxide limits for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia.
“We remand without vacatur to EPA for it to reconsider those emissions budgets,” Kavanaugh ordered in his decision.
Although the ruling may lessen the compliance burdens for the states in question, the court refused to go any further.
“We reject all petitioners’ further challenges to the Transport Rule, including all of their facial challenges to the Rule,” said the court in the final decision.
EPA touted the rule as a “good neighbor” approach to pollution control—one that protected downwind states from emissions blown across their borders from upwind states. Opponents argue EPA has exceeded its authority under the Clean Air Act by imposing uniform standards for all upwind states rather than basing the rule on the amount of pollution actually generated by individual upwind states.
In a statement, EPA spokeswoman Melissa Harrison said the agency was “pleased” the court had upheld most of the rule.
“We are reviewing the decision and will determine any further course of action once our review is complete,” Harrison said.
‘Last Line of Defense’
“Over the last several years, EPA has unleashed what is undoubtedly the most expansive regulatory binge in the agency’s history,” said John Eick, director of the Energy, Environment, and Agriculture Task Force at the American Legislative Exchange Council.
“Given Congress’ apparent inability to rein in EPA, the courts have proven to be the last line of defense for those concerned about the production and distribution of affordable, reliable, and safe energy,” said Eick.
“In the very near future, many of EPA’s other activities will be litigated, and it is to be hoped the courts will take an even more hardline approach with the agency,” Eick said.
Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow at the National Center for Public Policy Research.