In a case that has roots going back decades, the U.S. Court of Appeals for the D.C. Circuit yesterday largely upheld an Obama administration air pollution rule – supported by the Trump EPA – that aims to crack down on pollution from one state’s power plants blowing into another state. The unanimous decision also said the rule has to be strengthened.
The Obama Cross-State Air Pollution Rule (CSAPR) was formulated under the 1990 Clean Air Act’s “Good Neighbor” provision. After years of complaints from downwind states that particulates and ozone from upwind coal-fired generating plants was making it impossible for the downwind states to comply with federal air pollution standards, the George W. Bush administration in 2005 promulgated the Clean Air Interstate Rule (CAIR).
The Bush plan established “budgets” for 28 upwind states and the District of Columbia with targets to meet those budgets 2010 for SO2 and 2009 for NOx and then more stringent goals for both statutory pollutants by 2015. Naturally, litigation followed, with industry groups contending the rule was too severe and environmental groups charging it as too lenient.
In 2008, the D.C. Circuit invalidated the entire rule. When the Obama administration came into power in 2009, the EPA began working on a replacement for the Bush plan. In July 2011, three years after the court struck down the Bush rule, the Obama EPA published its replacement. The EPA then made a series of minor adjustments to the rule over the next year and a half.
Litigation again arose, covering much of the same ground as in the Bush rule. In August 2012, the D.C. Circuit, by a 2-1 vote, tossed out the Obama plan, raising the probability of further years of delay. The D.C. Circuit decision went to the U.S. Supreme Court. In April 2014, the high court overturned the circuit court by a 6-2 decision. Writing for the majority, Ruth Bader Ginsberg said, “EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, workable, and equitable interpretation of the Good Neighbor provision.”
EPA updated the rule in 2016, leading to another legal challenge at the D.C. Circuit. The appeals court described the litigation in familiar terms: “A number of parties brought challenges to the Rule, some contending that the Rule is too strict and others contending that it is too lenient.”
While the three-judge panel upheld most of the rule, it vacated one aspect. The opinion said: “We conclude that, in one respect, the Rule is inconsistent with the Act: it allows upwind States to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind States must demonstrate their attainment of air quality standards. In all other respects, though, we determine that EPA acted lawfully and rationally.” The court remanded that issue back to the EPA, while otherwise leaving the rule in place.
The judges in the case were Sri Srinivasan, Patrician A. Millett, and Robert L. Wilkins.
Environmental Defense Fund attorney Graham McCahan said, “Today’s court decision will help millions of Americans have healthier, safer air to breathe. The Cross-State Air Pollution Rule is a common sense safeguard that provides vital clean air protections for the downwind states that suffer because of their neighbors’ smokestack pollution.” EDF is a party to the case.
— Kennedy Maize