DC Circuit Strikes Down Lax EPA Rules on Cross-Border Pollution

WASHINGTON (CN) — The D.C. Circuit struck down an Environmental Protection Agency rule Tuesday that set loose guidelines for monitoring the amount of air pollution that travels across state lines.

Smog in New York City as viewed from the World Trade Center in 1988. (Photo courtesy Centers for Disease Control and Prevention)

In a unanimous decision, the appeals panel reiterated its previous findings that the “good neighbor” provision of the Clean Air Act – which limits emissions that could blow into downwind states – “requires upwind states to eliminate their significant contributions in accordance with the deadline by which downwind states must come into compliance with the National Ambient Air Quality Standards.”

While the EPA has some flexibility in enforcing the good neighbor provision by granting downwind states one-year extensions – and doing the same for upwind states or finding it would be impossible to eliminate upwind pollution sources by deadline, the panel found the EPA had not shown any of these possibilities support the so-called “close out rule” that effectively absolved upwind states of further air quality improvements.

“As shown, the Close-Out Rule rests on an interpretation of the Good Neighbor Provision now rejected by this court. At the same time, the rule imposes no obligations, so vacating it will cause no disruption. Thus, vacatur is appropriate,” the panel wrote.

The judges noted the EPA likely intends to challenge its previous findings in Wisconsin v. EPA and the current decision, either by asking for rehearing or petitioning the court for an en banc rehearing. The agency has until Oct. 29 to do so.

Six states, New York City and a slew of environmental and public health advocacy groups challenged the EPA’s rule, which Tuesday’s ruling strikes down and requires the EPA to restrict sources of industrial air pollution. More than 36 million people in 49 counties are affected by chronic respiratory diseases and scarring of the lungs due to exposure to smog.

“In Houston, our communities have never breathed clean air in accordance with federal standards set by the Clean Air Act,” Juan Parras, executive director for the Texas Environmental Justice Advocacy Services said in a statement. “We have shouldered the real-life impacts for far too long. This is a huge step to clean up ozone and air toxics pollution in environmental justice communities and to better the lives of millions of people across the nation.”

Neil Gormley, who represented the environmental advocacy group Earthjustice, said in a statement that the decision was “another big win for public health and the environment.”

“Now it’s past time for the EPA to stop stalling and do its job,” he said.

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