Cross-State Air Pollution Rule Archives

CSAPR Reinstated, But Some Upwind States May Be Able to Bring As-Applied Challenges

by Jacob Hollinger | Apr 29, 2014 | Environmental

The U.S. Supreme Court today upheld the U.S. Environmental Protection Agency’s Cross State Air Pollution Rule, otherwise known as CSAPR or the “Transport Rule,” reversing a lower court decision that had vacated that rule. The decision means that large sources of nitrogen oxide and sulfur dioxide emissions in upwind states – especially coal-fired power plants – will be subject to more stringent air pollution control requirements going forward.

Today’s decision is an important victory for EPA and for the downwind states and other entities that supported the Transport Rule. Indeed, the decision not only reinstates the Transport Rule, but also holds that EPA did not act prematurely in issuing federal implementation plans (FIPs) for that rule.

But the decision does leave room for some state-specific implementation-related challenges on remand. Most notably, the Supreme Court held that EPA lacks authority to require certain types of “over-control,” meaning that EPA cannot require an upwind state to reduce its emissions beyond (i) the amount needed to achieve attainment with applicable air quality standards in every downwind state to which it is linked or (ii) the point at which the upwind state is no longer contributing more than one percent of the air pollution problem in every downwind state to which it is linked. Thus, to the extent that the Transport Rule, or an individual FIP, requires such “over-control,” the affected upwind state should be able to challenge that aspect of the rule, or the FIP, on remand. In the Supreme Court’s words: “If any upwind State concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as applied challenge to the Transport Rule, along with any other as-applied challenges it may have.”

Nevertheless, the overall takeaway from today’s decision is that the lower court was wrong to vacate the Transport Rule and that EPA is entitled to considerable deference in how it implements the Clean Air Act’s “good neighbor” provision. The Supreme Court endorsed EPA’s overall approach to reducing interstate air pollution, even if it left open the possibility that some individual states may be able to challenge the state-specific application of that approach.

Power Plant Cases in the Supreme Court

by McDermott Will & Emery | Oct 7, 2013 | Environmental

by Jacob Hollinger

The Supreme Court’s 2013 term just began but it is already shaping up to be an important one for power plant owners and operators. Three points stand out: First, on October 7, the Court denied cert. in Luminant Generation Co. LLC v. EPA, a case in which several power companies were challenging the Environmental Protection Agency’s (EPA) current approach to regulating air emissions during startup, shutdown and malfunction (SSM) events. The Court’s action leaves in place a Fifth Circuit decision which upheld EPA’s approach, at least as applied to the Clean Air Act state implementation plan (SIP) for the State of Texas. More importantly, the Court’s action is likely to bolster EPA’s confidence as it pursues its ongoing rulemaking concerning the SSM provisions in 39 other SIPs, a rulemaking in which EPA has proposed eliminating affirmative defenses for excess emissions that occur during “planned” SSM events. More information about EPA’s ongoing SSM rulemaking can be found here: https://www.epa.gov/airquality/urbanair/sipstatus/emissions.html.

Second, the Court is actively considering whether to hear an industry challenge to EPA’s regulation of greenhouse gases under the Clean Air Act’s (CAA) prevention of significant deterioration (PSD) program. The Court currently has before it eight cert. petitions seeking review of the D.C. Circuit’s August 2012 decision in Coalition for Responsible Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012). That decision rejected industry challenges to EPA’s four “core” greenhouse gas (GHG) regulations – the Endangerment Finding, in which EPA concluded that carbon dioxide emissions from motor vehicles contribute to air pollution reasonably anticipated to endanger public health and welfare; the Tailpipe Rule, in which EPA set motor vehicle GHG emission limits; the Timing Rule, in which EPA announced that GHGs are “subject to regulation” under the CAA as of January 2, 2011; and the Tailoring Rule, in which EPA announced that with respect to GHG emissions it was raising the statutory threshold for PSD applicability. A central point of dispute in the Coalition matter is whether EPA’s conclusion that it is required to regulate motor vehicle GHG emissions means that EPA must also regulate stationary source GHG emissions. We should know shortly whether the Supreme Court will address that dispute.

Finally, the Court is scheduled to hear oral argument on December 8 concerning EPA’s Cross State Air Pollution Rule, a rule which the D.C. Circuit invalidated last summer. The Supreme Court’s eventual decision in that case, EPA v. EME Homer City Generation, L.P., No. 12-1182, is likely to be extremely significant for power plant owners regardless of which side prevails. A ruling in EPA’s favor will reinstate stringent emission limits on upwind power plants, but a ruling against EPA may simply lead to more stringent emission limits being imposed in downwind states. In all events, the case concerns a complex and difficult problem – interstate air pollution – and the Supreme Court’s decision is likely to clarify EPA’s authority to address that problem.

Divided Appeals Court Vacates Air Transport Rule Targeted at Coal-Fired Power Plants

by McDermott Will & Emery | Aug 30, 2012 | Environmental

by Jeffrey D. Watkiss

In EME Homer City Generation, L.P. v. EPA, two judges of a divided three-judge panel of the United States Court of Appeals for the D.C. Circuit vacated the Environmental Protection Agency’s (EPA) 2011 Cross-State Air Pollution Rule (Transport Rule), which implemented the so-called "good-neighbor" provision of § 110 of the four-decade-old Clean Air Act (CAA). Recognizing that upwind emissions pollute downwind regions, the good-neighbor provision requires CAA implementation plans (federal or state) to prohibit upwind sources of air emissions from contributing significantly to a downwind state’s inability to attain or maintain compliance with national ambient air quality standards (NAAQS). Had it not been stayed and later vacated, the Transport Rule would have put 28 upwind states on emission "budgets" for sulfur dioxides (SO2) and nitrogen oxide (NOx) — both NAAQS criteria pollutants — requiring emission reductions primarily from upwind coal-fired electric generating stations.

Coal-burning power companies, coal companies, labor unions, associated trade associations, states and local governments petitioned for review of EPA’s Transport Rule. On December 30, 2011, the court stayed the Transport Rule and instructed EPA, pending a decision on the merits, to continue administering the agency’s predecessor Clean Air Interstate Rule (CAIR). The Transport Rule was EPA’s attempt to develop a rule that cured problems with CAIR, which a different panel of the D.C. Circuit in 2008 found to violate the CAA in North Carolina v. EPA.

The majority’s August 21, 2012 opinion ruled in favor of the petitioners and vacated EPA’s Transport Rule on the ground that the EPA exceeded its CAA authority in two respects. First, the majority held that, under the Transport Rule, upwind states may be required, in violation of the CAA good-neighbor requirement, to reduce emissions by more than their proportional share of significant upwind contributions to a downwind state’s inability to attain or maintain NAAQS compliance. Second, EPA simultaneously set a Federal Implementation Plan (FIP), according to the majority, that ran afoul of the federalism embedded in the CAA, which requires that states be given the first opportunity to devise a compliance strategy in the form of a State Implementation Plan (SIP).

The dissent opinion is excoriating. It accuses the majority of creating and deciding straw-man issues that the majority wanted to decide, but which were not raised before the agency and were therefore not properly before the court. With respect to EPA’s calculation of the emissions reductions that the Transport Rule would impose on upwind states, the dissent accuses the majority of intentionally misreading North Carolina as requiring the agency to use the same metrics to determine which upwind sources are subject to good-neighbor emissions reductions, on the one hand, and the emissions reductions budget for each such state, on the other hand. According to the dissent, North Carolina ruled to the contrary that EPA’s measure of a state’s “significant contribution” to downstream non-attainment or non-maintenance of NAAQS did not have to correlate directly with the state’s air [...]

Continue Reading

CSAPR Reinstated, But Some Upwind States May Be Able to Bring As-Applied Challenges

Power Plant Cases in the Supreme Court

Divided Appeals Court Vacates Air Transport Rule Targeted at Coal-Fired Power Plants

BLOG EDITORS

STAY CONNECTED

TOPICS

ARCHIVES

RECENT POSTS