D.C. Circuit Vacates Cross-State Air Pollution Rule

Posted Thursday, August 29th, 2013

Last year, several dozen power companies, coal companies, labor unions, trade associations, states, and local governments petitioned the U.S. Court of Appeals for the D.C. Circuit to vacate the U.S. Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution Rule (“CSAPR”) as being arbitrary and capricious and otherwise inconsistent with the Clean Air Act. Hopping Green & Sams, along with a number of other law firms, successfully sought a stay of CSAPR. On August 21, 2012, following briefing and oral argument, the D.C. Circuit vacated CSAPR. EME Homer City Generation, L.P., v. EPA, No. 11-1302 (D.C. Cir. Aug. 12, 2012).

EPA had hoped to use CSAPR to regulate air emissions from upwind states that effect air quality in downwind states. EPA identified 28 such upwind states; EPA included Florida in CSAPR because of an alleged link to downwind receptors near Houston, Texas.

In a 2-1 decision, a three-judge panel of the D.C. Circuit vacated CSAPR for two independent reasons. First, the D.C. Circuit held that CSAPR improperly required states “to reduce their emissions by more than their own significant contribution to a downwind state’s” air quality problems. Under the Clean Air Act and prior precedents, the D.C. Circuit explained that “EPA must avoid using the [Act’s] good neighbor provision in a manner that would result in unnecessary overcontrol in the downwind [s]tates.” According to the Court, EPA took no such precautions. Second, the D.C. Circuit held that CSAPR failed to comply with the Clean Air Act because – contrary to the Act’s cooperative federalism structure – CSAPR imposed a federal implementation plan on upwind states without first giving them an opportunity to promulgate a state implementation plan. The Clean Air Act, the Court made clear, precluded this usurpation of the states’ prerogative to implement air quality standards.

In its decision, the D.C. Circuit also left the Clean Air Interstate Rule – CSAPR’s flawed predecessor – in place while EPA works to remedy the errors in CSAPR. As expected, Judge Rogers filed a lengthy dissent in the case. Since CSAPR was a priority for EPA – and EPA had all but guaranteed that CSAPR would be upheld – a petition for rehearing or even a petition for writ of certiorari in the U.S. Supreme Court is possible.

Contact: Mohammad O. Jazil

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