EPA’s Cross-State Air Pollution Rule Affirmed by DC Circuit

In a unanimous ruling, the U.S. Court of Appeals for the D.C. Circuit largely affirmed EPA’s Cross-State Air Pollution Rule (CSAPR) on July 28. EPA v. EME Homer City Generation, L.P. (D.C. Cir. July 28, 2015). CSAPR is the emissions trading program to address interstate pollution from power plants.  The case was on remand to the D.C. Circuit from the Supreme Court, which largely upheld the rule in 2014.  The D.C. Circuit still had to rule on several objections to CSAPR from industry and some states.

In an opinion by Judge Brett Kavanaugh, the court upheld several principles underlying CSAPR, such as EPA’s right to invalidate formerly approved state implementation plans to allow imposition of federal implementation plans to implement CSAPR. The court did remand the rule to EPA to reconsider maximum emissions allowances (“budgets”) of several states but did not vacate the budgets, so as to avoid disruption of emissions trading markets. The 2014 SO2 budgets for Alabama, Georgia, South Carolina, and Texas, and the 2014 ozone-season NOx budgets for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia were invalidated.  However, the remand to EPA to reconsider those budgets should have little practical consequence, because EPA was already revising CSAPR in order to meet the requirements of the more stringent 2008 ozone National Ambient Air Quality Standard (NAAQS). EPA also has a more stringent PM2.5 NAAQS, and is considering an even tougher ozone NAAQS.

For more information, contact Steve O’Day.

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