DC Circuit Court: EPA must reconsider cross-state air pollution rules

Dive Brief:

The D.C. Circuit Court of Appeals has sided with states who argue the U.S. Environmental Protection Agency's rules guarding against pollution drifting across borders are too broad and must be re-written, though the judge stopped short of vacating the rule.
In the order, issued yesterday, Circuit Court Judge Brett Kavanaugh found the rules had likely caused states to reduce emissions beyond what is necessary by using a uniform standard rather than individually examining pollutants.
But the court upheld broader questions of the rule's legality, leading the EPA and environmental groups to ultimately praise the decision.

Dive Insight:

Sometimes it's tough to tell who won and who lost. A federal appeals court rejected the EPA's “good neighbor” provisions focused on stopping emissions from crossing state borders, but both the agency and Environmental Defense Fund have issued statements praising the decision.

While the court granted claims by 15 states that their particular limits were too high, calling on EPA to conduct further analysis and reconsider the targets, it also wrote: “We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule.”

“The Cross-State Air Pollution Rule will continue to protect 240 million Americans from dangerous smokestack pollution in upwind states,” Environemental Defense Fund attorney Graham McCahan said in a statement.

A district court rejected the rule in 2012 but the U.S. Supreme Court overturned that decision last year in a 6-2 decision. In a statement reported on by The Hill, EPA spokeswoman Melissa Harrison said “the agency remains committed to working with states and the power sector as we move forward to implement the rule. … We are reviewing the decision and will determine any appropriate further course of action once our review is complete."

The judge's order found the 2014 SO2 emissions budgets for Alabama, Georgia, South Carolina, and Texas, were invalid, as well as the ozone-season NOX budgets for Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia, and West Virginia.

“We remand without vacatur to EPA for it to reconsider those emissions budgets,” Kavanaugh wrote. “We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule.”