Some observers have touted the recent decision by the U.S. Court of Appeals for the D.C. Circuit in EME Homer City Generation v. EPA, No. 11-1302 (D.C. Cir. Aug. 21, 2012), as a victory for the electrical power, coal and natural gas industries in the U.S.
By striking down the Cross-State Air Pollution Rule (the “Transport Rule”), the court undermined a key components of EPA’s strategy to restrict emissions from the nation’s coal-fired electrical generation plants. The Transport Rule was the result of EPA’s effort to define regulatory responsibilities under the “good neighbor” provision of the federal Clean Air Act (“CAA”), which requires States to restrict emissions within their borders when they adversely affect downwind air quality. Specifically, the Transport Rule imposed new limits on emissions of sulfur dioxide (“SO2”) and nitrogen oxides (“NOx”) that would “contribute significantly to nonattainment in … any other State” of applicable national ambient air quality standards (“NAAQSs”). After EME Homer, those requirements are now off the books.
While the Transport Rule may be history, that does not mean other requirements won’t be adopted to take its place. The matter has been remanded for further action by EPA, which must continue to administer the Rule’s predecessor, the 2005 Clean Air Interstate Rule (“CAIR”), until a replacement can be developed. In the meantime, courts have upheld other components of EPA’s regulatory strategy, including the “endangerment finding” and regulations limiting greenhouse gas emissions (Coalition for Responsible Regulation v EPA, No. 09-1322 (D.C. Cir. June 26, 2012)); the one-hour NAAQS for NO2 (American Petroleum Institute v. EPA, No. 10-1079 (D.C. Cir. July 17, 2012)); and new NAAQS for SO2 (National Environmental Development Association v. EPA, No. 10-1252 (D.C. Cir. July 20, 2012)).
Read more at the Washington Legal Foundation. By Kevin T. Haroff.
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