DC Circuit Strikes Down Interstate Air Pollution Rule

The Dave Johnson coal-fired power plant is silhouetted against the morning sun in Glenrock, Wyo., on July 27, 2018. (AP Photo/J. David Ake, File)

WASHINGTON (CN) – Finding the rule falls short of standards set out in a federal clean air law, the D.C. Circuit on Friday struck down an Environmental Protection Agency regulation that requires states to lower emissions that can flow across state lines and hurt the air quality of their neighbors downwind.

The so-called good neighbor provision of the Clean Air Act requires states to take steps to cut back on pollution that would prevent states downwind from meeting air quality standards set by the EPA.

The EPA implemented stricter air quality standards for ozone pollution in 2008 and in 2016 finalized a rule that set out how much 22 upwind states in the eastern part of the country would need to cut their emissions in order to come into compliance with the new standards and the good neighbor provision.

Environmental groups and the state of Delaware challenged the rule, known as the Cross-State Air Pollution Rule, calling it too lax.

A three-judge panel of the D.C. Circuit agreed in a 60-page opinion on Friday, particularly faulting the EPA for not imposing a deadline by which upwind states must reduce their emissions.

“We conclude that, in one respect, the rule is inconsistent with the [Clean Air Act]: it allows upwind states to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind states must demonstrate their attainment of air quality standards,” the unsigned opinion states.

The EPA had required states that were in “moderate” noncompliance with the ozone standards to come into compliance by July 20, 2018, but had no such time requirement for upwind states to limit their emissions.

Because pollution drifts across borders with the wind, it is difficult for downwind states to meet their requirements if upwind states do not also limit their emissions.

For example, in order to meet the air quality standards without assistance from upwind states, Fairfield County, Connecticut, would need to slash its own emissions by 40% or face serious consequences from the federal government, according to the opinion.

“This is a big win for millions of people who will get to breathe cleaner air,” Neil Gormley, a staff attorney at Earthjustice who served as the lead attorney on the case, said in a statement. “We already have the technology we need to end this dangerous pollution and save lives; today’s decision means no more excuses.”

Gormley represented the Sierra Club and the Appalachian Mountain Club in the challenge.

The court rejected the environmental groups’ challenges to the modeling decisions the EPA made when issuing the rule, and did the same to challenges from industry groups and states that argued the rule was too harsh.

The ruling does not vacate the EPA’s regulation, but requires the agency to issue a revised version of the rule.

An EPA spokesperson said the agency is reviewing the opinion.

The three-judge panel was comprised of U.S. Circuit Judges Sri Srinivasan, Patricia Millett and Robert Wilkins.

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