The United States Court of Appeals for the District of Columbia, in
a 2-1 ruling today, said the Environmental Protection Agency had exceeded its authority in the way it apportioned the cleanup work among 28 upwind states, called the Cross-State Air Pollution Rule. The rule addressed how to deal with states whose own air was clean enough, but were hosts to power plants, refineries and other industrial plants that emitted sulfur dioxide and nitrogen oxide pollutants that prevented neighboring states from attaining the level of cleanliness required under the Clean Air Act.
The rule was EPA’s attempt to carry out a court-ordered fix on an earlier version, the 2005 Clean Air Interstate Rule. The court said that the E.P.A. was authorized to set rules that would require upwind states “to bear responsibility for their fair share of the mess in downwind states.” But the E.P.A. had improperly required states “to reduce their emissions by more than their own significant contribution to a downwind state’s nonattainment,” according to the opinion, written by Judge Brett M. Kavanaugh and joined by Judge Thomas B. Griffith. Judge Judith W. Rogers dissented from the ruling.
The E.P.A.’s rule also violated the
Clean Air Act because it failed to let the states submit their own plans to comply and imposed a federal plan instead, the court said. The statute leaves it to the states to decide how they will meet federal standards. The ruling could also leave the previous Clean Air Interstate Rule in place.
Several power companies had challenged the E.P.A. rule, and were supported by more than a dozen states, mostly in the South and Midwest. North Carolina supported the rule, along with several mid-Atlantic and New England states.
Many big environmental groups, including the Sierra Club, Environmental Defense Fund, Clean Air Task Force, American Lung Association, and the Natural Resources Defense Council, supported the E.P.A.’s position and were joined by downwind states and cities. (
NYT, 8/21/2012)
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