Cross-State Rules: EPA Strikes Out Again

In a major blow to EPA’s continuing efforts to regulate emissions that migrate across state lines and cause air quality non-attainment problems in downwind states, a panel of the D.C. Circuit Court of Appeals on August 21, 2012 rejected EPA’s 2011 Cross-State Air Pollution Rule (CSAPR) as over-reaching and infringing on states’ Clean Air Act authority to fashion remedies in State Implementation Plans and as arbitrarily increasing emission reduction requirements on some states while exempting others as below de minimis thresholds.

Although the D.C. Circuit struck down the CSAPR rule, it expressly left in place the Clean Air Interstate Rule (CAIR), EPA’s prior attempt to regulate cross-state emissions which the same court had remanded but not struck down in 2008. Thus, while various state air quality planning and improvement programs are premised on these cross-state emission reductions being required and achieved, many of the ripple effects that this decision might otherwise have had may not actually occur.

The Court’s quibble with EPA this time focuses on what are essentially timing and implementation elements of the program. Recognizing the frustration EPA must feel in this extended process and a second round of judicial remand, the Court was careful to state it is not the court’s job to set environmental policy or comment on the appropriateness of a cross-state program. Indeed, EPA has adopted other cross-state pollutant transport programs that have been recognized as lawful and effective, such as the Clean Air Act’s Acid Rain Program.

In terms of allocating emission reduction requirements, the major point the Court makes is that the regulatory burden on each state should be established at a level designed to reverse the emission contribution of that particular state – not make up for other states. The problem is that there inevitably is going to be some level of inequity. A de minimis line must be drawn somewhere – and Texas just happens to exceed it slightly at one monitoring point, while Minnesota narrowly falls under it and escapes further regulation. But the court doesn’t quibble with the idea that emission reduction requirements may appropriately include a margin of error factor.

While this is a major program and EPA may very well petition for reconsideration by this panel or en banc , it also appears that EPA could narrowly reopen the CSAPR rulemaking to address the issues raised in this opinion without recreating the wheel on cross-state air pollution.$file/11-1302-1390314.pdf

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