• United States Court of Appeals for the District of Columbia Circuit vacated the EPA's Cross-State Air Pollution Rule
  • August 23, 2012 | Author: Jeffrey D. Talbert
  • Law Firm: Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • On Tuesday, August 21, 2012, the United States Court of Appeals for the District of Columbia Circuit vacated the U.S. Environmental Protection Agency's ("EPA") Cross-State Air Pollution Rule ("CSAPR").

    In August 2011, EPA promulgated the Transport Rule, or CSAPR, to target emissions of sulfur dioxide and nitrogen oxides, two pollutants produced at coal and natural gas-fired power plants in 28 upwind states. The rule aimed to reduce air quality impacts to downwind states.

    In a 2-1 decision the majority found that CSAPR exceeds the EPA's statutory authority in two ways. First, by imposing "massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text." Second, EPA violated the Clean Air Act and failed to implement the good neighbor provision by simultaneously not allowing the States "the initial opportunity to implement the required reductions with respect to sources within their borders," and implementing Federal Implementation Plans ("FIPs") to impose those obligations at the State level.

    The Court vacated the Transport Rule and the Transport Rule FIPs and remanded the proceeding to EPA. EPA's 2005 Clean Air Interstate Rule ("CAIR") remains in place pending a valid replacement.