A three judge panel of the U.S. Court of Appeals for the District of Columbia circuit has given the environmental Protect Agency a mixed decision on its 2018 rejection of petitions from several states calling for tighter pollution limits from upwind coal-fired power plants in other states. The May 19 opinion was unanimous.
The court ruled that EPA was correct in rejecting a petition from Delaware, as the upstream emissions didn’t put the state out of compliance with its NOx air quality requirements. But the court accepted Maryland’s petition, part of multiple state petitions, which argued that the upwind plants must reduce emissions from plants not equipped with selective catalytic reduction technology. EPA rejected that petition, saying it was not “cost effective.” Maryland said EPA was not fulfilling its requirements under the “good neighbor” provision of the 1990 Clean Air Act amendments, the 2008 National Ambient Air Quality Standards, and the updated 2015 standards.
The court remanded the Maryland issue back to EPA, to take up the state’s contention that non-catalytic technologies should have been used on four neighboring coal-fired power plants. The court said EPA’s cost effectiveness conclusion was not within the agency’s authority. In a dense opinion, the court said that “we grant Maryland’s petition for review in part and remand the non-catalytic controls issue to the EPA. We otherwise deny the petitions for review.”
The ruling came from judges Karen Lecraft Henderson, a 1990 George H.W. Bush appointee; Merrick Garland, a Clinton appointee; and Gregory Katsas, a Trump appointee.
Richard Revesz, law professor and dean emeritus at the NYU School of Law, commented, “There is no question that EPA has a legal obligation to prevent upwind states from significantly contributing to unsafe air conditions in downwind jurisdictions. The agency can certainly seek out the cheapest way of fulfilling this responsibility, but it can’t cite cost as a reason to ignore the law altogether. That’s not cost-effectiveness analysis. That’s dereliction of duty.”
Revesz also directs NYU’s Institute for Policy Integrity, which filed an amicus brief in support of the states.
EPA had no comment. Whether the Trump administration will appeal to either the full appeals court or the U.S. Supreme Court is not known.
— Kennedy Maize