Lifting of CSAPR Stay Could Reinstate Cap and Trade Air Pollution Rule

The D.C. Circuit Court of Appeals lifted its stay of EPA’s Cross-State Air Pollution Rule (CSAPR) on October 23, following the April 29 Supreme Court ruling affirming portions of the rule. The stay was lifted even though the D.C. Circuit is still considering challenges to CSAPR that were not addressed in its prior ruling, or in the Supreme Court case. Because the court did not also toll the January 1, 2015 compliance deadline for the first phase of CSAPR, there is uncertainty as to whether and how soon compliance must be achieved.

CSAPR replaced the Bush-era Clean Air Interstate Rule (CAIR), which has remained in place during the stay of CSAPR.  Both rules address the interstate transport of air pollution. Initially slated to go into effect on January 1, 2012, CSAPR covers power plants in 28 states in the Eastern U.S. to curb interstate transport of ozone-forming nitrogen oxides (NOx), sulfur dioxide (SO2) and fine particulates (PM2.5). The goal was to meet the 1997 ozone national ambient air quality standard (NAAQS) of 84 ppb, and the 2006 PM2.5 NAAQS of 15 ug/m3. While the stay has been in effect, both the ozone and PM2.5 NAAQS have been lowered, to 75 ppb and 12 ug/m3, respectively.  EPA must determine whether to update CSAPR or promulgate an entirely new rule to meet the more stringent NAAQS.

EPA has indicated that it considers the D.C. Circuit to have granted both aspects of its motion, and therefore to have tolled the January 1 deadline. As a result, EPA will implement CSAPR’s first phase beginning January 1 and will delay the compliance deadlines by three years.  The second phase of the rule, including more stringent caps, would go into effect in January 2017.

For more information on CSAPR, contact Steve O’Day or Phillip Hoover.

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