by Danielle Baussan
Call it the “Goldilocks Conundrum.”
Four years ago, the D.C. Circuit Court of Appeals struck down the George W. Bush-era Clean Air Interstate Rule for not sufficiently protecting downwind states from upwind soot and smog. However, in August, the same court determined that the Obama Administration’s Cross State Air Pollution Rule isn’t protecting upwind states from having to reduce pollution too much.
While the DC Circuit Court waits for the porridge to be “just right,” public health suffers due to unchecked air pollution.
That’s because the rule, known as CSAPR, is just right, and an appeal to this faulty decision should be filed by the Environmental Protection Agency. An appeal or rehearing must be filed by October 5th, but EPA has not yet done so, leaving the public and power plant owners wondering if it will fight to save CSAPR or re-start the multi-year process for a new rule.
Let’s look at the legal background on this important issue.
On August 21st, the U.S. Court of Appeals struck down the Cross State Air Pollution Rule (CSAPR) in EME Homer City Generation, L.P. vs. EPA. CSAPR was designed by EPA to prevent 34,000 premature deaths and 400,000 asthma attacks each year. The rule would have helped downwind states by limiting sulfur dioxide and nitrogen oxide pollution coming from power plants in upwind states. These pollutants are the main ingredients in soot and smog, and the rule would have improved the health of millions of Americans (see table 1).
Yet the court found in a 2-to-1 ruling that EPA methodology used to limit upwind states’ pollution could result in cutting too much pollution, i.e., by reducing more pollution than what air quality standards prescribe.
The court also found that EPA erred in developing a federal implementation plan to require upwind states to reduce power plant pollution, rather than first allowing states to form their own implementation plans.
Justice Judith Rogers vigorously dissented from this ruling. She accused the majority of “ignor[ing] jurisdictional limits [and] substantive provisions that Congress wrote in clear terms, ” adding, “the result [of the majority opinion] is the endorsement of a ‘maximum delay’ strategy for regulated entities, rewarding States and industry for cloaking their objections throughout years of administrative rulemaking procedures and blindsiding the agency…”
The Obama Administration should appeal the ruling to overturn it and make CSAPR a reality, rather than continuing the pattern of rulemakings and rejections. However, an appeal of this ruling is no guarantee of success. The EPA can petition for a rehearing by the original three-judge panel of Judges Janice Rogers, Thomas Griffith and Brett Kavanaugh or petition en banc for a hearing before all eight active judges on the D.C. Circuit. Five judges would have to agree to an en banc hearing, and five of D.C. Circuit judges were appointed by Republican presidents.
The Administration isn’t the only entity that can appeal the ruling. Several environmental groups seem poised to file their own appeals. Yet silence from the EPA would undermine the Administration’s faith in its own ruling and further endanger a successful appeal. The Obama Administration should support the EPA ruling and fight for the health of millions of children, senior citizens and other vulnerable people.
Regardless of what happens by October 5th, one thing is clear: cross state air pollution is no fairy tale. If there is no petition for a rehearing, en banc review, or writ of certiorari in the U.S. Supreme Court, or if such petitions are rejected, the D.C. Circuit Court has directed EPA to continue the CAIR standard while EPA develops a “valid replacement,” upholding its reasoning in the CAIR decision to “temporarily defeat the enhanced protection of the environmental values covered by [CAIR].”
The Court does not deny the need for EPA to develop a cross-state air pollution rule; it just doesn’t think any are “juuust right,” as Goldilocks would say.
Though we may not know what will happen in the next chapter of this story, its moral is crystal clear: upwind state pollution can endanger the health of people living downwind. What’s less clear is when the “happily ever after” ending resulting in more health safeguards will occur.
Danielle Baussan is the Associate Director of Government Relations at the Center for American Progress.